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FREEDOM NATIONAL; SLAVERY SECTIONAL. 



SPEECH 



OF 



HON. CHARLES SUMNER 

OF MASSACHUSETTS, 



ON HIS MOTION* 



TO REPEAL THE FUGITIVE SLAVE BILL, 



IN THE SENATE OF THE UNITED STATES, AUGUST 26, 1852 



If any man thinks that the intcre?t of these Nations and the ;: 
of Christianity are two separate and distinct things, I •■■■ ! may 

aevcr enter into his secret. Olivl:: CbomWBUL 



WASHINGTON : 
B U E L L & BLANCHARD, 

1S52. 






the moraine hour, an attempt was made to call it United States is authorized to allow the payment 
me illiuiu uuui, i i ( thereof, under the special taxation of the district or 

np. t circuit court of the district in which the said services 

Mr. SUMNER, Mr. President, I now ask permis- j nave bcen or gn all be rendered, to be paid from tho 
sion of the Senate to take up the resolution which I i appropriation for defraying the expenses of the judi- 
offered yesterday. For that purpose, I move that J ciary fi 

the prior 01 Li n be postponed, and upon this motion , STJMKER moved the following amendment to 

I desire to say a word. In asking (he Senate to take i , , 

an this resolution for consideration, I say nothing of : the amendment: 

its merits nor of the arguments by which it may be j "Provided, That no such allowance shall be au- 
maintainod ; nor do I at this stage anticipate any ob- 
ons to it on those grounds. All this • 
he di lussion of the resoluti 



main question— when it is actually before the Senate. 
The single i aestion now is. not the resolution, but 
whether! shall be heard upon it. As a Senator, un- 
der the responsibilities of my position, I have deemed 
i t my duty to offer this resolution. I may secin to 
have' postponed this duty to an inconvenient period 
of the session ; but had I attempted it at an earlier 
dav I might have exposed myself to a charge of a 



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icipate any ob- thorized for any expenses incurred in executing the 
is will properly ac t f September 18, 1850, for the surrender of fugi- 
tion itself— the tives from service or labor; which said act is hereby 
repealed." 

On this he took the floor, and spoke as follows: 
Mr. President : Here is a provision for ex- 
traordinary expenses incurred in executing the 
laws of the United States. Extraordinary ex- 
penses ! Sir, beneath these specious words 



lis question Dfiore tne eoumry 
the case now. I have taken time, and in the exer- 
cise of my most careful discretion now ask for it the 
attention of the Senate. I shrink from any appeal 
founded on a trivial personal consideration; but 
should I be blamed for any delay latterly, I may 
add, that though in my seat daily, my bodily health 
for some time past, down to this very week, has not 



IHS1C It io , UK> lulled UJ.iGU t'J U"V l.i""» gv/ v/«. 

being an "abstraction/' but actually presented 

for practical legislation ; not introduced by nie, 

but by one of the important committees of the 

Senate ; not brought forward weeks ago, when 

there was ample time for discussion, but only 

at this moment, without any reference to the 

bcVneT.^ai'io the 'service I have undertaken, iMjIkte period of the session The amendment 

not sure that it is now ; but I desire to try. And -which I now offer, proposes to remove one chief 

now again I say the question is simply whether I occas i n of these extraordinary expenses. 

shall be heard. In allowing mo this privilege— this Ao( j Q afc j^j. among these final crowded 

right, I might say-you do not commit 70unelve«iii ! d of our duties' here, but at this earliest op- 

^J^ZjX^g | Polity, I am to be' heard not as a fcv| 

yield to a brother Senator the opportunity which he \ but as a right. The graceful usages of this 

craves, in the practical discharge of his duty, to ox- i body ma y be abandoned, but the established 

ionvictions dear to his heart, and dear to large j p^jWeg f debate cannot be abridged. Par- 

rs of his constituents. For the sake of these | g fc courtesy may be forgotten, but Pur- 

cnn«titucnts for my own sake, I now desire to be; "<«"v" « j j j & » 

neafd Make such disposition of my resomtion after- hamentai T Jaw rnust prevail^ The subject is 



ward as to you shall seem best ; visit upon me any 
any degree of criticism, censure, or displeasure, but 
do "not 'deprive me of a hearing. " Strike, but hear. 

A debate ensued, in which Messrs. Mason, Brooke, 
ton, Shields, Gwin, Douglas, Butler, and Bor- 
took part. Objections to taking up the resolu- 
tion were pressed on the ground of " want of time," 
"the lateness of the session," and "danger to the 
Union." 

The question being then taken upon the motion by 
Mr. Sumner, to take up his resolution, it was re- 
jected—yeas 10, nays 32— as follow : 

Yeas— Messrs. Clarke, Davis, Dodge of Wisconsin, 
Foot, Hamlin, Seward, Shields, Sumner, Upham, and 
Wade— in. 

Nays— Messrs. Borland, Brodhead, Brooke, Cass, 
Charlton, Clemens, Desaussure, Dodge of Iowa, 
Douglas, Downs, Felch, Fish, Geyer, Gwin, Hunter, 
Kin^ Mallory, Maugnm, Mason, Meriwether, Miller, 
Morton, Norris, Pearce, Pratt, Busk, Sebastian, 
Smith, Soule, Spruanee, Toucey, and Weller— 32. 

Thursday, August 26, 1852. 
The Civil and Diplomatic Appropriation Bill be- 
ing under consideration, the following amendment 
was moved by tho Committee on Finance: 

'• That where the ministerial officers of the United 

States have or shall incur extraordinary expenses in 

executing tho laws thereof, the payment of which is 

specifically provided for, the President of the 



broadly before the Senate. By the blessing of 
God, it shall be discussed. 

Sir, a severe lawgiver of early Greece vainly 
sought to secure permanence for his imperfect 
institutions, by providing that the citizen who, 
at any time, attempted an alteration or repeal 
of any part thereof, should appear in the pub- 
lic assembly with a halter about his neck, 
ready to be drawn if his proposition failed to 
be adopted. A tyrannical spirit among us, in 
unconscious imitation of this antique and dis- 
carded barbarism, seeks, to surround an offen- 
sive institution with a similar safeguard. In the 
existing distemper of the public mind and at 
this present juncture, no man can enter upon 
the service which I now undertake, without a 
personal responsibility, such as can be sus- 
tained only by that sense of duty which, under 
God, is always our best support. That per- 
sonal responsibility I accept. Before the Sen- 
ate and the country let me be held accountable 
for this act, and for every word which I ut- 
ter. 

With me, sir, there is no alternative. Pain- 
fully convinced of the unutterable wrongs and 
woes of slavery: profoundly believing that, ac- 
cording to the true spirit of the Constitution 
and the sentiments of the fathers, it can find 



no place under our National Government — that 
it is in every respect sectional, and in no respect 
national — that it is always and everywhere the 
creature and dependent of the StaU t. and never 
anywhere the creature or dependent of* the 
Nation, and that the Nation can never, hy legis- 
lative or other act, impart to it any support, 
under the Constitution of the United Si 
with these convictions. I could not allow this 
session to reach its close, without makii 
seizing an opportunity to declare myself openly 
against the usurpation, injustice, and cruelty, 
of the late enactment hy Congress for the re- 
covery of fugitive slaves. Full well I know, 
sir, the difficulties of this discussion, arising 
from prejudices of opinion and from adverse 
conclusions, strong and sincere as my own. 



station, did something for hi< fellow man." 
From such simple aspirations I was taken away 
hy the free choice of my native Commonwealth, 
and placed in this responsible post of duty, 
without personal obligation of any kind, be- 
yond what was implied in my life and publish- 
ed words. The earnest friends, by whi w confi- 
dence I was first designated, aak< 1 nothing 
from me, and. throughout the long conflict 
which ended in my election, rejoi i 1 in the | o- 
Bition which 1 most can fulh guai le 1. To ..11 
my language was uniform, that I did Dot desire 
t.i be brought forward : that I would '1" d< thing 
to promote the result; that I ha 
promises to offer ; that the < 
me. and not I the office ; 8J 
me in all respects an independent m in, bound 



Full well I know that I am in a small minori- to no party and to no human being, hut only, 



ty, with few here to whom I may look for sym- 
pathy or support. Full well I know thai I 
must utter things unwelcome to many in this 
body, which I cannot do without pain. Full 
well T know that the institution of slavery in 
our country, which I now proceed to consider, 
is as sensitive as it is powerful — possessing a 
power to shake the whole land with a sensitive- 
ness that shrinks and trembles at the touch. 
But, while these things may properly prompt 
me to caution and reserve, they cannot change 
my duty, or my determination to perform it. 
For this I willingly forget myself, and all per- 
gonal consequences. The favor and good-will 
of my fellow-citizens, of my brethren of the 
Senate, sir — grateful to me as it justly is — I am 
ready, if required, to sacrifice. All that I am 
or may he, 1 freely offer to this cause. 

And here allow me. for one moment, to refer 
to myself and my position. Sir, 1 have never 
been a politician. The slave of principles, I 
call no party master. By sentiment, edu- 
cation, and conviction, a friend of Human 
Rights, in their utmost expansion. I have 
ever most sincerely embraced the Democrat- 
ic Idea; not, indeed, as represented or pro- 
fessed by any party, but according to its real 
significance, as transfigured in the Declaration 
of Independence, and in the injunctions of 
Christianity. In this Idea I saw no narrow ad- 
vantages merely fur individuals or classes, but 
the sovereignty of the people and the greatest 
happiness of ail secured by equal laws. Amidst 
the vicissitudes of public affairs, I trust always 
to hold fast to this Idea, and to any political 
party which truly embraces it. 

Party does not constrain me: nor is my in- 
dependence lessened by any relations to the 

office which gives me a title to be heard on this ! ted the public mind: which vet palpitates a 
floor. And here, sir, I may speak proudly. By j every heart and burns on every tongue : which, 
no effort, by no desire of my own. I find myself in its immeasurable importance, dwarfs all 
a Senator of the United States. Never before other subjects; which, by its constant and gi- 

With gantic presence, throws a shadow acroet 



according to my best judgment, to act for the 

' of all. again, sir, I - peak 
both for myself and others, when i add that 
these avowals found a sympath 
Ii this spirit I have • mi D I in this 

spirit T shall speak to-day. 

Rejoicing in my in 1 >p inder ■ • ' (aim- 
ing nothing from party ties. 1 throw m 
upon the candor ami magnanimity of tb< 
ate. I now ask your attention ; but I 1 
not to abuse it. I may Bpeak Btrongly; for 
I shall speak openly and from the Btr 
of my convictions. I may Bpeak wan 
for I shall speak from the heart. But in no 
event can I forget the amenities which be- 
long to debate, and which especially become 
this body. Slavery 1 must cond imn with my 
whole soul; but bevel need only borrow the 
language of slaveholders themselves ; dot would 
ir accord with my habits or my Bense of justice 
to exhibit them as the impersonation of the in- 
stitution — Jefferson calls it the "enormity" — 
which they cherish. Of them 1 do not SI 
but without fear and with i 
impeachment of any person. I assail thiswrong. 
Again, sir. I may err: but it will be v.ith the 
Fathers. I plant myself on the ancient ways 
of the Republic, with its grandest nam 
surest landmarks, and all its original altar- 
fires about me. 

And now, on the very threshold, 1 600 winter 
the ob j tctiou that there is a final settlement in 
principle and substance, of the questii ii oi Sla- 
very, and that all discussion of it is closed. 
Both the old political parties of the country, by 
formal resolutions, have united in thi- declara- 
tion. On B subject which for year.- has &| 



have I held public office of any kind. 

the ample opportunities of private life 1 was 

content. No tombstone for me could bear 



Halls; which at thifi very time calls for ap- 
propriations to meet extraordinary expenses it 



fairer inscription than this: ••Here lies one who, lias caused, they have imposed the rule of si- 

without the honors or emoluments of public lence. According to them, sir. we may - 



of everything except that alone, which is most 
present in all our minds. 

To this combined effort I might fitly reply, 
that, with flagrant inconsistency, it challenges 
the very discussion which it pretends to forbid. 
Such a declaration, on the eve of an election, 
is, of course, submitted to the consideration 
and ratification of the people. Debate, in- 
quiry, discussion, are the necessary conse- 
quence. Silence becomes impossible. Slavery, 
which you profess to banish from the public 
attention, openly by your invitation enters 
every political meeting and every political con- 
vention. Nay, at this moment it stalks into this 
Senate, crying, like the daughters of the horse- 
leech, li Give! give! ;; 

But no unanimity of politicians can uphold 
the baseless assumption, that a law, or any 
conglomerate of laws, under the name of Com- 
promise, or howsoever called, is final. Nothing 
can be plainer than this; that, by no Parlia- 
mentary device or knot, can any Legislature 
tie the hands of a succeeding Legislature, so 
as to prevent the full exercise of its constitu- 
tional powers. Each Legislature, under a just 
sense of its responsibility, must judge for it- 
self; and, if it think proper, it may revise or 
amend, or absolutely undo the work of its pre- 
decessors. The laws of the Medes and Persians 
are proverbially said to have been unalterable: 
but they stand forth in history as a single ex- 
ample of such irrational defiance of the true 
principles of all law. 

To make a law final, so as not to be reached 
by Congress, is. by mere legislation, to fasten a 
new provision on the Constitution. Nay, more; 
it gives to the law a character which the very 
Constitution does not possess. The wise fathers 
did not treat the country as a Chinese foot, 
never to grow after infancy ; but, anticipating 
Progress, they declared expressly that their 
Great Act is not final. According to the Con- 
stitution itself, there is not one of its existing 
provisions — not even that with regard to fugi- 
tives from labor — which may not at all times 
be reached by amendment, and thus be drawn 
into debate. This is rational and just. Sir, 
nothing from man's hands, nor law, nor con- 
stitution, can be final. Truth alone is final. 

Inconsistent and absurd, this effort is tyran- 
nical also. The responsibility for the recent 
Slave Act and for Slavery everywhere within 
the jurisdiction of Congress necessarily involves 
the right to discuss them. To separate these 
is impossible. Like the twenty-fifth rule of 
the House of Representatives against petitions 
on Slavery — now repealed and dishonored — 
the Compromise, as explained and urged, is a 
curtailment of the actual powers of legisla- 
tion, and a perpetual denial of the indisputa- 
ble principle that the right to deliberate is co- 
extensive with the responsibility for an act. 
To sustain Slavery, it is now proposed to tram- 
ple on free speech. In any country this would 
be grievous; but here, where the Constitution 



expressly provides against abridging freedom 
of speech, it is a special outrage. In vain do 
we condemn the despotisms of Europe, while 
we borrow the rigors with which they repi-ess 
Liberty, and guard their own uncertain power. 
For myself, in no factious spirit, but solemnly 
and in loyalty to the Constitution, as a Senator 
of Massachusetts, I protest against this wrong. 
On Slavery, as on every other subject, I claim 
the right to be heard. That right I cannot, I 
will not abandon. " Give me the liberty to 
know, to utter and to argue freely, above all 
liberties.'' These are the glowing words which 
flashed from the soul of John Milton, in his 
struggles with English tyranny. With equal 
fervor they should be echoed now by every 
American, not already a slave. 

But, sir, this effort is impotent as tyrannical. 
The convictions of the heart cannot be re- 
pressed. The utterances of conscience must 
be heard. They break forth with irrepressible 
might. As well attempt to check the tides of 
Ocean, the currents of the Mississsppi, or the 
rushing waters of Niagara. The discussion of 
Slavery will proceed, wherever two or three 
are gathered together — by the fireside, on the 
highway, at the public meeting, in the church. 
The movement against Slavery is from the 
Everlasting Arm. Even now it is gathering 
its forces, soon to be confessed everywhere. It 
may not yet be felt in the high places of office 
and power ; but all who can put their ears 
humbly to the ground, will hear and compre- 
hend its incessant and advancing tread. 

The relations of the Government of the 
United States — I speak of the National Gov- 
ernment — to Slavery, though plain and obvi- 
ous, are constantly misunderstood. A popular 
belief at this moment makes Slavery a national 
institution, and, of course, renders its support 
a national duty. The extravagance of this 
error can hardly be surpassed. An institu- 
tion, which our fathers most carefully omitted 
to name in the Constitution, which, according 
to the debates in the Convention, they refused 
to cover with any " sanction," and which, at 
the original organization of the Government, 
was merely sectional, existing nowhere on the 
national territory, is now above all other things 
blazoned as national. Its supporters plume 
themselves as national. The old political par- 
ties, while upholding it, claim to be national. 
A National Whig is simply a Slavery Whig, 
and a National Democrat is simply a Slavery 
Democrat, in contradistinction to all who re- 
gard Slavery as a sectional institution, within 
the exclusive control of the States, an*d with 
which the nation has nothing to do. 

As Slavery assumes to be national, so, by an 
equally strange perversion, Freedom is degra- 
ded to be sectional, and all who uphold it, 
under the national Constitution, share this 
same epithet. The honest efforts to secure its 
blessings, everywhere within the jurisdiction 



of Congress, are scouted as sectional : and this 
cause, which the founders of our National 
Government had so much at heart, is called 
sectionalism. These terms, now belonging to 
the commonplaces of political speech, are 
adopted and misapplied by most persons with- 
out reflection. But herein is the power of Shi- 
very. According to a curious tradition of the 
French language, Louis XIV, the grand mon- 
arch, by an accidental error of speech, among 
supple courtiers, changed the gender of a DOnn : 
but Slavery has done more than this. It baa 
changed word for word. It has taught many 
to say national instead of sectional, and mc- 
tional instead of national. 

Slavery national! Sir, this is all a mistake 
and absurdity, fit to take a place in some new 
collection of Vulgar Errors, by some other Sir 
Thomas Browne, with the ancient but explo- 
ded stories, that the toad has a stone in its 
head, and that ostriches digest iron. Accord- 
ing to the true spirit of the Constitution, and 
the sentiments of the Fathers. Slavery and 
not Freedom is sectional, while Fr-etlom and 



oijuU regulations.'"— {Harry vg. Dtoktr, Waller B , 

42.) 

And another slaveholding tribunal 

preme Court of Kentucky has - 

" Wt I leu this a-- ;i right • ■ 

of a municipal abaracter, without ram i :•■• • 

lav of nature or the unwritten and i mmon law." 

2 Marshall, 

Of ooone every power to D] b •' i SI 
must bave an origin a< distinct as thai of Shi- 
very itself Every presumption mnel be as 

strong against BUCll DOWS 

A power so peoaliar and 

to reason, so repugnant to the lav of nal 

and the inborn Rights of Man; which desi 

it> \ iitinis of the fruits of their labor; which 

substitutes oonenhinage for marriage; v 

abrogates the relation of parenl and ebild ; 

which, by a denial of education, aba 

tellect. | ir wants a tra • knowledge of God, tad 

murdore the very soul : which, ami lei ■ plan* 

Bible physical comfort^ degradet 

the divine image, to the Usvd of > b >ast - - 

i power, bo eminent, bo transci D 



not Slavery is national. On this unanswerable oical, so unjust, can find no place in any 

proposition I take my stand. And here com- 
mences my argument. 

The subject presents itself under two princi- 
pal heads ; First, the true relations of the Na- 
tional Government to Slavery, wherein it will 
appear that there is no national fountain out 
of which Slavery can be derived, and no na- 
tional power, under the Constitution, by which 
it can be supported. Enlightened by this gen- 
eral survey, we shall be prepared to consider, 
Secondly, the true nature of the provision for the 
rendition of fugitives from labor, and herein 
especially the unconstitutional and offensive 
legislation of Congress in pursuance thereof. 



I. And now for the true relations of the 
National Government to Slavery. These 
will be readily apparent, if we do not neglect 
well-established principles. 

If Slavery be national, if there be any power 
in the National Government to uphold this in- 
stitution — as in the recent Slave Act — it must 
be by virtue of the Constitution. Nor can it 
be by mere inference, implication, or conjecture. 
According to the uniform admission of courts 
and jurists in Europe again and again promul 
gated in our country, Slavery can be derived 
only from clear and special recognition. "The 
state of Slavery," said Lord Mansfield, pro- 
nouncing judgment in the great case of Somer- 
set^ "is of such a nature, that it is incapable 
of being introduced on any reasons moral or 
political, but only by positive law. It is so 
odious, that nothing can be suffered to support it 
but POSITIVE law." — (Howdfs State Trials, 
vol. 20, p. 82.) And a Blaveholding tribunal, 
the Supreme Court of Mississippi, adopting the 
same principle, has said : 

" Slavery is condemned by reason and the laws of 
nature. It exists and can exist unhj through muni- 



bem of Government, unless by virtu.' of p mtive 
sanction. It can spring from no doubtful 
phrases, It must be declared by unambiguous 
words, incapable of a double Bense 

\y Slavery. I now repeat, is not mentioned in 

I the Constitution. The name Slaw dOM not 
pollute this Charter of our Liberi at N 
live" language gives to Congress any power to 
make a Slave or to hunt a Slave. VTo find even 
any seeming sanotion for either, we must travel, 
with doubtful footsteps, bey md its express let- 
ter, into the region of interpretation But hero 

j are rules which cannot be disobeyed. With 
electric might for Freedom, they Band a perva* 

I eive influence though every provision, olnuee, 
and word of the Constitution. Each and nil 
make Slavery impossible as a national institu- 
tion. They efface from the Constitution every 
fountain out of which it can be derived. 
First and foremost, is the Preamble. This 

discloses the prevailing Objects and principles 

of the Constitution. Thisis the vestibule through 
which all must pass, who would enter tl ■ 
crcd temple. Here are the inscriptions by 

which they are earliest impressed. Here they 

first oatch the genius of toe place. Here the 
proclamation of Liberty is first heard. •■ ^ v - •• 
the People of the United State-, says the Pre- 
amble, "in order to form a more perfect I D OH, 
'/ Ji justice) insure domestic tranquillity, pro- 
vide for the common defence, prpmod tin ent- 
eral welfare, and tecun tin M uing 
to ourselves and our Posterity, do ordain ana 
establish this Constitution for the United Si 
of America." Thus, according to undeniable 

words, the Constitution was ordained, not to 
establish, secure, orsanetion Slavery — not to 

promote the special ; I slaveholder! — 

not toyBfake Slavery national, in any way. form, 
or manner; but to " establish justice," " pio- 



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10 

Stated defendthe Constitution of the United f lives and recorded words now rise in jud- 

a Over the President, on this high occasion J SSL^t^dietr tnTIn^ ^T 
floated the National Flag with its Lpes of red ' of our Ta^tt^nce^wh^S 
an,] ,ts stars on a held of blue. As his patriot ' flarain^ with freedom broVp WV, it . « i ' 

eyej rested upon the glowing ensign, what cur- declaration tha^ «%£ ^^fiJSrVK 
rente mus have rushed swiftly through his sacrilegious breach o £2 ? Ldw2SS3i 
ou In the early days of the Revolution, in gable hostility to this wrong has been nAde 
ho e darke,t hours about Boston, after the bat- mortal in his descendants. 8 ffitia 

"i; o:''f, , 1 :' ,:u t: ,, ;> "; cjl f ^ named the : K&A*LWi3&: £ 

s other assom^nn, i Affairs under the Confederation, he found time 
to organize the Abolition Society of New York 
and to act as its President until, by the nomi- 
nation of Washington, he became Chief Justice 
of the United States. In his sight Slavery was 
an "iniquity," -a sin of crimson dye,"' against 
which ministers of the gospel should testify and 
which the Government should seek in everyway 
to abolish. <• Were I in the Legislature " he 
wrote, "I would present a bill for this purpose 
with great care, and I would never cease moving 
it till it became a law or I ceased to be a mem* 
ber. Till America comes into this measure 
her prayers to Heaven will be impious." 

But they were not alone. The convictions 
and earnest aspirations of the country were 
with them. At the North these were broad 
and general. At the South they found fervid 
utterance from slaveholders. By early and 



which, more than all its other associations, 
tills the soul— more even than the suggestions 
of Union which I prize so much. At this 

MOMENT, WHEN WASHINGTON TOOK HIS FIRST 
OATH TO SUPPORT THE CONSTITUTION OF THE 

' nited States, the National Ensign, no- 
where within the National territory 
covered a single slave. Then, indeed, was 
Slavery sectional and Freedom national. 

On the sea. an execrable piracy, the trade in 
slaves, was still, to the national scandal tole- 
rated under the national flag. In the States 
as a sectional institution, beneath the shelter 
oi local laws, Slavery unhappily found a home. 
.But in the only territories at this time belong- 
ingto the Nation, the broad region of the North- 
west, it had already, by the Ordinance of Free- 
dom, been made impossible, even before the 
adoption of the Constitution. The District of 



bolder : but it would be un ulfto rTmeto™ 3? ° ■ ^ '" Il>DgUa « e n " w farai,il "' "' 

g *- „ , b 4 raasraz firsts wtsjsss 



His opinions do not admit of question. Only a 
short time before the formation of the National 
Constitution, he had declared, by letter, " that 
it was among his first wishes to see some plan 
adopted by which Slavery may be abolished 
by law; and again, in another letter, "that 
m support of any legislative measure for the 



influences upon master as well as slave ; de- 
clared that the love of justice and the love of 
country pleaded equally for the slave, and that 
the -abolition of domestic slavery was the 
greatest object of desire.'' He believed that 
the sacred side was gaining daily recruits » 
abolition of slaved Its" ^3 ™ f v! con ?<tent\y looked to the young for the 

wanting:" and ,11 fur for w no J> aocomphshment of this good work. In fitful 

With alstinilshad KZS. a 4 SSS°? *"***' WUh J !*™» *» another honored 



with a distinguished European Abolitionist, a 
gavelling propagandist of Freedom. Brissot de 
w arviHe, recently welcomed to Mount Vernon 
he had openly announced : that to promote this 
'»> Virgm.a, -he desired the formation 
°» •' >'■■■ and that he would second it 



son of Virginia, the Orator of Liberty, Patrick 
Henry, who, while confessing that he was a 
master of slaves, said: «I will not. I cannot 
justify jt. However culpable my conduct. I 
will so far pay my devoir to virtue, as to own 

By this authentic'testimon^ he tak« h?Sw a f SColIf : nce an £ rectitude of her precepts, 
With the early „ atrca f ■ i v ^ place and lament my wJbt of conformity to them » 



11 

head of the American liar. William Pinkney, called upon hit country, 'in r l 
in a_speech of earnest, truthful eloquence— bet- of light "on the in j i 



ter far lor his memory than Irs transcendent 
professional fame — branded Slavery ajJniqui- 
tous ami most dishonorable ; " "founder 
disgraceful traffic:" ''as shameful in tte con 



the way for its total abolition?' This he 
gladly thought at band. "If we judge of1 

1 in a tur" By til- pa-'." said the eelel rated preacher, 
"within fifty years from this tinM-.it will be 



tinuancc as in itsorigin;" and h de- as shameful for a man to hold a negro slave ai 

dared, that, -I.)' the eternal principles of nat- to be guilty of common robbery or 



ural justice, no master in the State has a right 
to hold his slave in bondage a single hour." 

Thus at this time spoke the Nation. The 
Chvkch also joined its voice. Ami here, amid I 
the diversities of religion- faith, i1 is instructive 
toohserve the general accord. The Quakers first 
bore their testimony. At the adoption of the 
Constitution their whole body, under the early 
teaching of George Fox. and by the Drowning 
exertions of Benezet and Wa Iman, had become 
an organized hand of Abolitionists, penet 
by the conviction that it was unlawful to hold 
a fellow-man in bondage. The .Methodists. 
numerous, earnest, and faithful, Dever ceased by 
their preachers to proclaim the same truth. 
Their rules in 1788 denounced in formal lan- 
guage " the buying or selling of bodies and 
souls of men, women, and children, with an in- 
tention to enslave them." The words of their 
great apostle, John Wesley, were constantly 
repeated. On the eve of the National Conven- 
tion, the burning tract was circulated in which 
he exposes American slavery as the " vilest " of 
the world — "such Slavery as is not found 
among the Turks at Algiers" — and. after de- 
claring "liberty the birthright of every human 
creature, of which no human law can deprive 
him," he pleads: '-If. therefore, you have any 



Thus, at this time, the Church, in barmi ny 
w tfa tl e Nation, by its leading denominal 
Quakers, Methodists, Presbyterians, and I 
gregationalists, thundered against Slavery 
The Colli in unison with the < 'hurch. 

Harvard University spoke by tl I Mas- 

sachusetts, which had alreadj abolished Slave- 
ry. Dartmouth College, by on rued 
professors, claimed f ir thi 

with the whites." \ a] 
President the emin snt divine, E; a s ; i! 
came the head of the Abolition S •• of Con- 
necticut. And the University of William and 
Mary, in Virginia, testified it- -• m] athj with 
this cause at this very tine-, bj • noon 

Granville Sharp, the acknowl • •: of 

British Abolitionists, the honorary degi 
Doctor of Laws. 

The LITERATURE of the land 'hen 

exist, sd, agreed with the Nation, the church 
and the College. Franklin, in the last literary 
labor of his lite: Jefferson, in bis N ifa - i d Vir- 
ginia; Harlow, in his measured verse ; Rush, in 
a work which inspired the i raise 
Bon ; the ingenious author i I 
Captive — the earliest American norel, and 

though now but little known, one of the ••arli- 

est American hooks republish! n — 



regard to justice, (to say nothing of mercy or were all moved by the contemplation ol x 

the revealed law of God,) render unto all their ry. "If oar fellow-citizens of the S 

due. Give liberty to whom liberty is due. that State- are deaf to the pleading 

is, to every child of man, to every partaker of latter exclaims in his work. ••! will oonjure 



human nature." At the same time, the Pres 
byterians, a powerful religious body, inspired 
by the principles of John Calvin, in more mod- 
erate language, but by a public act, recor I d 
their judgment, recommending "to all the I 60- 
ple under their care to use the nest prudent 
measures consistent with the interest and 
the state of civil society, to prot ure > vt titvaily 
the final abolition of Slavery in Ami 1 1 
Congregationalists of New England, also of the 
faith of John Calvin, and with the hatred ol 
Slavery belonging to the great non-conformist, 
Richard Baxter, were sternly united against 
this wrong. As early as 1776, Samuel Hop- 
kins, their eminent leader and divine, published 
his tract showing it to he the Duty and Inter- 
terest of the American States to Emancipate 
all their African slaveij^l declaring that 
■•Slavery is in every inTraW^vroiig. unright- 
eous, and oppressive — a very great and cryin 



them. ft>r the Mike of C' DSistCnCV, I 

deprive their fellow-creatures "'. ;'; i ed< m. which 
their writers, their orators, repret and 

,-enators. and c.eri their const G - 

ei inn nt. have d< eland to be the .i.aliviuy 

birthright ofman."Jfc* — 

Such. ,»ir. at the adoption oft! til ition 

and at the first organization of the National 
( rovernment, w i I Bp ken. unequi 

heart of the country. SI abhorred. 

hike the Blave trade, it was i . tem-j 

porary; and, by many, it was Bupp 
they would both disappear t'g< ;le rjigV'' 
■ F Freedom filled the air. The ]<utnWr. the 
Christian, the scholar, the writer. \i- d in U>y- 
ty to th : s cause. A 11 were Abolition 

Glance now at tie bb under 

the Constitution. From various quarten 

: - were | resented to thi 
Slavery. Am me these was one from the Abo- 



r 




sin — there being nothing of ,the kind equal to lition Society of Virginia, wherein Slavery i- 

it on the face of the earth."' And, in 1791, pronounced *' not only ab odious degradal 

shortly after the adoption of the Constitution, but an outrage i most 

the Second Jonathan Edwards, a twice-honored essential rights of human nature, and uttj 

name, in an elaborate discourse often published, repugnant to the precepts of the Gos 



- 
- ■ _ 

— 

- — • : " 

- name to the I' 

: -. - 1 : - -; _ ; , ^2-1." : :: ".': : > - 
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■• ' ' — 
- 

::©ns. at onse j - 
.V. iiii.Ti:.: ; — ~; ;:. "':":: :::-::i: ^ 
- "- : r. . .: - ■■.:"_ :"_: * "--*;-■'-■? — - '•''_ 
'..:.-:* - — -:".:_ :j-: :: 

> few months c: - 
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: t l.l1 t-- . :--* 7.. - - -• :-r "i/: : '. : - .'. 
i.: : . - . : _ _'; '—•>.: z. - : . :_ = ". : -;tT 
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7 . - : -_ - - 

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;:.:.-.'• " z ' z .: —-' 7 -'—' :"- '-'. tz L ?.."-: "7 

- : 
:'.<s^ of Ji&snr a> tke people of 
- 

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; ■ 

■^ditf ef tie 

i. _». ' i ."" -.-*■-•'.' ••;.... .••'',.:•■,-.?-.'■. ■ .:"■-..* ." 



tm*i* » * *"' •*' »«*9jyy neat, «£# <&nr, 

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_ 

word to suppose 



■ 
■ ; ■ 1 to 

.- ■ 

-udrd?- Fears wo 
.. ■ -. reness of 

" ■ - " " ' - ■ ' 

-.--.: :•_.-• from the absence of a 

I - . '- • • "- ■" - 

• • • - .- 

: r .:.._" - 

; - . '■'■■■'. ~ : ' : ' ' 

- are 
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. - - •• 

: > - . .:: : :... - 1-". " " 

the lOih amendr 

". ■ Z~Z-i~- - ' ""-"--.-- - 

tie C-?E?tiKirDC>a. &or praMb:: ' ~ 

•.:-.: — i : ■_ . -' : "■- ■ . 

Sb ger words eoold not be employed to 
Emit the power under the Constitution, and to 
::"-• - " " 

nal Gc'vemment. particularly m deroga- 
tion of FrttAorr. teg .rrhan character com- 
mended ii to the sagacious mind of Jefferson. 
who said: "I consider the foondation corner- 
stone of the Constitution 

- ;...-: •: :• i:h ■" : ' - the u en V 
ments." And Samoel Adam- .hful 

'. ■ - . 
:.-•-:.. ' --.-.' - : . r - " J - '--- :'■"■' 
and gjres assorance dial if any law ma 

rderal Gorerni^ 
jond the power granted 
'. 1 : .z: :.- -" -.'-• - --.'l :\. ■ I ~ •■ : .- : i : - 

- . it will be an error, and a 

•- jcd all qnestion the Nation^'. 

- ; '... z-L y :_r C. --:'.-.-• - ' - : ■ 
: _. : :- . : -• - . _. z-z z '_--'- '■ 

■ . - . " • 

no power which is r. lelegated 
is tt! 

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'.:! - ~lz . . • ■ 

eoniains no p<c<wer to make a - 

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and 

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U. Ti 



13 



its Preamble, was ordained (; to establish jus- 
tice'' and "secure the blessings of liberty;" 
that, in the Convention which framed it. and 
also elsewhere at the time, it was declared not 
to sanction Slavery: that, according t" the 
Declaration of Independence and tbe ,\ ' 
of the Continental Congress, tbe Nation was 
dedicated to t: lil erty M and tlie -rights ol hu- 
man nature;" that, according to the principles 
of the common law. the Constitution musl I a 
interpreted openly, actively, and perpetually, 
for Freedom: that, according to the decision 
of the Supreme Court, it acts upon slavec 
a* property, but as persona; that, at the first 
organization of the National Government under 
Washington. Slavery bad no national favor, 
and existed nowhere beneatb the national Sag 
or on the national territory, hut was openly 
condemned by the Nation, the Church, the 
Colleges, and Literature of the time: and. final- 
ly, that, according to an Amendment of the 
Constitution, the National Government can only 
exercise powers delegated to it, among which 
there is none to support Slavery j considering 
these things, sir. it is impossible to avoid the 
single conclusion that Slavery is in no respect 
a national institution, and that the Constitu- 
tion nowhere upholds property in man. 

But there is one other special provision of the 
Constitution, which I have reserved to this stage, 
not so much from its superior importance, but 
because it may fitly stand hy itself. This alone, 
if practically applied, would carry Freedom to 
all within its influence. It is an amendment 
proposed by the first Congress, as follows : 

"Nil /' r$t shall be deprived of Hfo, liberty, or 
property, without < i a if law" 



apply these principl will 

1 1 w ben W ■ 
oath a- President The Union Flag of tbe 
public will ' I ree> 

dom, and at all points within tl 
risdii Son will n (use I 

; ' n land 
i. Slavery will like darkness 

trader 

the Spirit of Evil the 

Lord. 
In all national territori 

il!l| 

On th e hi i 
Slavery will be in 
In the District oi (*. Inml | U in- 

inspired by these 
give no Banotion to Slavery by tbe adi 
of new Slai 

Nowhere under th ■ C titution, can the 
Nation, by legislation or otfa 
Slavery, hunt slaves, or hold pn man. 

Such, sir. are my sine: . 
cording to the Constitution, as I i nderstand 
it, in the light of the Fast and of its true prin- 
ciples, there is no other OOnclnsion which is 
rational or tenable : which does. D ' ; - fy the 
authoritative rules of interpretation ; v. 
does not falsify indisputable facts of hist 
which does not affront the opinion in 

which it had it< birth ; and which di 
honor the memory of the Fa i 
these convictions are now . ler formal 

ban by politicians of the hour. The 
sentiments which filled the eariy patriots, and 
which impressed upon the Government they 



Under this regis the liberty of every person founded, as upon the ooin they circulat 



within the national jurisdiction is unequivo- 
cally placed. 1 say of every person. Of this 
there can be no question. The word " person 
in the Constitution embraces every human 
being within its sphere, whether Caucasian. 
Indian, or African, from the President to she 
slave. Show me a person, no matter what bis 
condition, or race, or color, within the national 
jurisdiction, and I confidently claim for him 
this protection. The natural meaning of the 
clause is clear, but a single fact of its history 
places it in the broad light of noon. As origi- 
nally recommended hy North Carolina and 
Virginia, it was restrained to the freeman. Its 
language was, " No freeman ought to be de- 
prived of his life, liberty, or property, but by 
the law of the land.'' In rejecting thi~ 'imita- 
tion, the authors of the amendment revealed 
their purpose, that no person, under the Na- 
tional Government, of whatever character, 
shall be deprived of liberty without due process 
of law; that is. without due presentment, in- 
dictment, or other judicial proceedings. Here 
by this Amendment is an express guaranty Of 
Personal Liberty, and an express prohibition 
against its invasion anywhere, at least within 
the national jurisdiction. 



image and superscription of Liberty, have 
lost their power. The slave-i -■ few in 

number, amounting to about 300,000, accord- 
ing to the reoent census, ba\ I 1 in 
dictating the policy of t' N 
ment, and have writt e! i it s front. 
And now an arrogant and unrelenting ostra- 
cism is aj. plied, not onlj I 
themselves against Slavery, but 
who is unwilhn m mial i 
\ novel test for office is infer 1 ced, which 
would h.' I all the Fathers i I 
Republic — even Washington. and 
Franklin ! Yes, sir. Startling it n 
indisputable. Could thee 
of history once again ' -■■■ id i | n earth, 
and mingle in our affairs, DO* One of them 
could reoeive a not oeation IV im th i N I 
Convention of either «.f t! e tv 
parti-- ! Out of the 
and the utterances of their 1 
very they would be condemned. 

This single fa el reveals the e-, f .-nt to which 
the National Government has departed from 
it* true course and its great exam] 
myself, I know no better aim under the Con- 
Btitntion, than to bring the Government 



14 



to the precise position on this question which 
mpied on the auspicious morning of its 
first organization ander Washington ; 

Cursus itornre 

Relictos; 
that the sentiments of the Fathers may again 
prevail with our rulers, and that the National 
Flag may nowhere shelter slavery. 

To such as count this aspiration unreasona- 
ble let me commend a renowned and life-giving 
dent of English history. As early as the 
days of Queen Elizabeth, a courtier had boast- 
ed that the air of England was too pure for a 
slave to breathe, and the common law was said 
to forbid Slavery. And yet in the face of this 
vaunt, kindred to that of our Fathers, and so 
truly honorable, slaves were introduced from 
the West Indies. The custom of slavery grad- 
ually prevailed. Its positive legality was af- 
firmed, in professional opinions, by two eminent 
lawyers. Talbot and Yorke, each afterwards 
Lord Chancellor. It was also affirmed on the 
bench by the latter as Lord Hardwicke. Eng- 
land was already a Slave State. The follow- 
ing advertisement, copied from a London news- 
paper, the Public Advertiser, of Nov. 22d, 
1769. shews that the journals there were dis- 
figured as some of ours, even in the District of 
Columbia : 

i- To be sold, a black girl, the property of J. B., 
eleven years of age, who is extremely handy, works 
at her needle tolerably, and spunks English perfectly 
well; is of an excellent temper and willing disposi- 
tion. Enquire of her Owner at the Angel Inn, behind 
St. Clement's Church, in the Strand." 

At last, only three years after this adver- 
tisement, in 1772. the single question of the le- 
gality of Slavery was presented to Lord Mans- 
field, on a writ of Habeas Corpus. A poor ne- 
gro, named Somersett, brought to England as 
a slave, became ill. and with an inhumanity 
disgraceful even to slavery, was turned adrift 
upon the world. Through the charity of an 
estimable man, the eminent Abolitionist, Gran- 
ville Sharpe, he was restored to health, when 
his unfeeling and avaricious master again 
claimed him as a bondman. The, claim was 
repelled. After an elaborate and protracted 
discussion in Westminster Hall, marked by 
rare learning and ability. Lord Mansfield, with 
discreditable reluctance, sullying his great ju- 
dicial name, but in trembling obedience to the 
genius of the British Constitution, pronounced 
a decree which made the early boast a practi- 
cal verity, and rendered Slavery forever impos- 
sible in England. More than fifteen thousand 
persons, at that time held as slaves in English 
air — four times as many as are now found in 
this District — stepped forth in the happiness 
and dignity of freemen. 

■\Yith this guiding example let us not des- 
pair. The time will yet come when the boast 
of our Fathers will be made a practical verity 
also, and Court or Congress, in the spirit of 
kis British judgment, will proudly declare 



that nowhere under the Constitution can man 
hold property in man. For the Republic such 
a decree will be the way of peace and safety. 
As Slavery is banished from the national ju- 
risdiction, it will cease to vex our national 
politics. It may linger in the States as a lo- 
cal institution : but it will no longer engender 
national animosities, when it no longer de- 
mands national support. 

II. From this general review of the relations 
of the National Government to Slavery, I 
pass to the consideration of the true nature 

OF THE PROVISION FOR THE SURRENDER OF FU- 
GITIVES from labor, embracing an examina- 
tion of this provision in the Constitution, and 
especially of the recent act of Congress in pur- 
suance thereof. And here, as I begin this dis- 
cussion, let me bespeak anew your candor. Not 
in prejudice, but in the light of history and of 
reason, let us consider this subject. The way 
will then be easy and the conclusion certain. 

Much error arises from the exaggerated im- 
portance now attached to this provision, and 
from the assumptions with regard to its origin 
and primitive character. It is often asserted 
that it was suggested by some special difficulty, 
which had become practically and extensively 
felt, anterior to the Constitution. But this is 
one of the myths or fables with which the sup- 
porters of Slavery have surrounded their false 
god. In the Articles of Confederation, while 
provision is made for the surrender of fugitive 
criminals, nothing is said of fugitive slaves or 
servants ; and there is no evidence in any quar- 
ter, until after the National Convention, of 
any hardship or solicitude on this account. 
No previous voice was heard to express desire 
for any provision on the subject. The story to 
the contrary is a modern fiction. 

I put aside as equally fabulous the common 
saying that this provision was one of the origi- 
nal compromises of the Constitution and an 
essential condition of Union. Though sanc- 
tioned by eminent judicial opinions, it will be 
found that this statement has been hastily 
made, without any support in the records of 
the Convention, the only authentic evidence of 
the compromises ; nor will it be easy to find 
any authority for it in any contemporary doc- 
ument, speech, published letter or pamphlet of 
any kind. It is true that there were compro- 
mises at the formation of the Constitution, 
which were the subject of anxious debate ; but 
this was not of them. 

There was a compromise between the small 
and large States, by which equality was secur- 
ed to all the States in the Senate. There was 
another compromise finally carried, under 
threats from the South, on the motion of a New 
England member, by which the Slave States 
were allowed Representatives according to the 
whole number of free persons, and "three-fifths 
of all other persons.*' thus securing political 
power on account of their slaves, in considera- 



tion that direct taxes should be apportioned in 
the same way. Direct taxes have been impos- 
ed at only four brief intervals. The political 
power has been constant, and, at this moment, , 
sends twenty-one members to the other House. 

There was a third compromise, which can- 
not be mentioned without shame. It was that 
hateful bargain by which Congress were re- 
strained until 1808 from the prohibition of the ' 
foreign slave trade, thus securing, down to that 
period, toleration for crime. This was pertina- 
ciously pressed by the South, even to the extent 
of an absolute restraint on Congress. John 
Rutledge said: "If the Convention thinks 
North Carolina. South Carolina, and Georgia, 
will ever agree to this plan [the Federal Con- 
stitution] unless their right to import slaves be 
untouched, the expectation is vain. The people 
of those States will never be such fools a- to 
give up so important an intorest." Charles [ 
Pinckney said: " South Carolina can never re- 
ceive the plan [of the Constitution] if it pro- 
hibits the slave trade." Charles Cotesworth 
Pinckney "thought himself bound to declare 
candidly that he did not think South Carolina 
would stop her importation of slaves in any ; 
short time."' The effrontery of the slaveholders ! 
was matched by the sordidness of the Eastern j 
members, who yielded again. Luther Martin, 
the eminent member of the Convention, in his ! 
contemporary address to the Legislature of 
Maryland, has described the compromise. ;< I 
found." he says. • that the Eastern members, ' 
notwithstanding their aversion to Slavery, were [ 
very willing to indulge the Southern States, at 
least with a temporary liberty to prosecute the 
slave trade, provided the Southern States would 
in their turn gratify them, by laying: no restric- 
tion on navigation acts." The bargain was 
struck, and at this price the Southern States 
gained thedetestable indulgence. At a subse- 
quent day, Congress branded the slave trade as 
piracy, and thus, by solemn legislative act. ad- 
judged thia compromise to be felonious and 
wicked. 

Such are the three chief original compromi- ' 
6es of the Constitution and essential condition - 
of Union. The case of fugitives from labor 
is not of these. During the Convention, it J 
was not in any way associated with these. Nor i 
is there any evidence, from the records of this 
body, that the provision on this subject was re- 1 
garded with any peculiar interest. As its ab- 
sence from the Articles of Confederation had 
not been the occasion of solicitude or desire, j 
anterior to the National Convention, so it did 
not enter into any of the original plans of the 
Constitution. It was introduced at a late period 
of the Convention, and with very little and 
most casual discussion, adopted. A few facte 
will show how unfounded are the recent as- 
sumptions. 

The National Convention was convoked to 
meet at Philadelphia on the second Monday 
in May, 1787. Several members appeared at. 



this time: but a majority of the States not 
being r epr es en ted, those ptetenl ■ lie 

from day to day until the 25th. when tie I 

vention wasci 

Washington, as President On tfc 

f^w brief rules and orders were adopted On 
the next day they commenced their great 
work. 

On this day Edmund Randoli fa of -1 avi hold- 
ing Virginia, laid before the Convention a se- 
ries of sateen resolutions, g his plan 
for the establishment of a new N 
eminent. Here was no allu- .itive 
slaves, 

On the same day, ' !h*rles Pinekn< 
holding South Carolina, laid I I a- 

vention what is called - a drafl ieral 

Government, t" 
free and independei 

elaborate paper, marked mi- 

nuteness of detail. Here are provi 
rowed from the Articles of Confederatioi 
curing to citizens of each Stat privi- 

leges in the several States] giving faith to 
public records of the States; and orda 
the surrender of fugitives from iastioe. But 
tin* draft, though from the framing gpai 
of the slave-interest, contained no allusion to 
fugitive slaves. 

In the course of the Convention other plans 
were brought forward : on the 15th of June a 
series of eleven propositions by Mr. Patterson. 
of .New Jersey, 'so as to render the Federal 
Constitution adequate to theexlaenc 
emment, and the preservation o* the Union 
on the 18th of June, eleven propositioni 
Mr. Hamilton, of New York, ''containing 

ideas of a suitable plan of G rnmenl for 

the United States;' 3 and on the l yth J 
Mr. Randolph's resolutions, originally of 
on the 29th May. "as altered, am nded, and 
agreed to in Committee of the Whole II- 
On the 2(Jth. twenty-three resolutioi 
adopted on different day.- in the Convenl 
were referred to a "Comm 
be reduced to the form of On 

the 6th Augusl | 
finished drafl ol 

all these resolutions, 1 draft-. 

in number, proceeding from emineal 
and from able committees, no allusion was 
made to fugitive slaves. For three months 
Convention was in ntsrion. an 1 oof ■ i ■« ut- 
tered on this subject. 

At last, on the 28th A 
vention was drawing to B 
eration of the article _ for the privi- 

leges of citizens in meet 

the first reference to this matter, in v 
worthy of note : ■Gen. [Char' rth] 

Pinckney was not satisfied with it. H 
SEEMED to wish some provision should 
included in favor of property in slaves." Bat 
he made no proposition. Unwilling to Bhock 
the Convention, and uncertain in hie own :.. 



16 

he only seemed to wish such a provision. In labor ; nor is there any record of the times, in 
vague expression of a vague desire this debate or otherwise, showing that any special 
idea first appeared. In this modest, hesitating l importance was attached to its provisions in 
phrase is the germ of the audacious, unhesita- j this regard. The attention of Congress had 
tino- Slave Act. Here is the little vapor, which j been directed to fugitives from justice, and, 
has since swollen, as in the Arabian tale, to the I with little deliberation, it undertook in the 
power and dimensions of a giant. The next j same bill to provide for both classes of cases, 
article under discussion provided for the sur- In this accidental manner was legislation on 
render of fugitives from justice. Mr. Butler ; this subject first attempted. 
and Mr. Charles Pinckney, both from South j There is no evidence that fugitives were often 
Carolina, now moved openly to require " fugi- : seized under this act. From acomretent in- 
tive slaves and servants to be delivered up like | quirer we learn that twenty-six years elapsed 
criminals." Here was no disguise. With Ham- before a single slave was surrendered under it 

in any Free State. It is certain that, in a case 
at Boston, towards the close of the last century, 
illustrated by Josiah Quincy as counsel, the 
crowd about the magistrate at the examination 
sylvania" at once~objected :"" Thiswould oblige i quietly and spontaneously opened a way for 
the Executive of the State to do it at the pub- 1 the fugitive, and thus the Act faded to be exe- 
lic expense." Mr. Sherman, of Connecticut, cuted. It is also certain that, m \ermont, at 
" saw no more propriety in the public seizing th e beginning of the century, a Judge of the 
and surrendering a slave or servant than a Supreme Court of this State, on application for 
horse." Under the pressure of these objections the surrender of an alleged slave, accompanied 
the offensive proposition was quietly with- j by documentary evidence, refused to_ comply, 



let it was now said in spirit — 

S - is, madam, nay, it is ; I know not seems. 
But the very boldness of the effort drew at- 
tention and opposition. Mr. Wilson, of Penn- 



position was quietly 
drawn. The article for the surrender of crim- 
inals was then adopted. On the next day, 
August 29th, profiting by the suggestions al- 
ready made, Mr. Butler moved a proposition — 
substantially like that now found in the Con- 
stitution—not directly for the surrender of, other Act, which, on consideration, was reject- 
" fugitive slaves," as originally proposed, but ed. At a later day, in 1817- 18, though still 



unless the master could show a Bill of Sale from 
the Almighty. But even these cases passed 
without public comment. 

In 1801, the subject was introduced into the 
House of Representatives by an effort for an- 



lally propo 

of " fugitives from service or labor," which, 
without debate or opposition of any kind, was 
unanimously adopted. 

The provision, which showed itself thus tar 



disregarded by the country, it seemed to excite 
a short-lived interest in Congress. A bill to 
provide more effectually "for reclaiming ser- 
vants and slaves, escaping from one State into 



dilv and was so slightly noticed in the Nation- \ another/' was introduced into the House of 
al Convention, was neglected, in much of the Representatives by Mr. Pindall. of Virginia. 
contemporaneous discussion before the people, j was considered for several days in Committee 
In the Conventions of South Carolina, North of the Whole, amended and passed by this 
Carolina, and Virginia, it was commended as : «« d y- In the Senate, after much attention and 
securing important rights, though on this point j warm debate, it was also passed with amend 
there was a difference of opinion. In the Vir- j 
ginia Convention, an eminent character, Mr. 
George Mason, with others, expressly declared j 
that there was ''no security of property coming j 
within this section." In the other Conventions 
it was disregarded. Massachusetts, while ex- i 



ments. But on its return to the House for the 
adoption of the amendments, it was dropped. 
This effort, which, in the discussions of this 
subject, has thus far been unnoticed, is chiefly 
remarkable as the earliest recorded evidence of 
the unwarrantable assertion, now so common, 
that this provision was originally of vital im- 



hibiting peculiar sensitiveness at any respon- 
sibility for Slavery, seemed to view it with un- ; portance to the peace and harmony of the 
concern. The Federalist. (No. 42.) in its classi- \ country. 

fication of the powers of Congress, describes! At last, in 1850, we have another Act, passed 
and groups a large number as those " which j by both Houses of Congress and approved by 
provid* for the harmony and proper inter- I th e President, familiarly known as the Fugi 



course among the States/ 5 and therein speaks 
of the power over public records, standing next 
in the Constitution to the provish n on fugitives 
from labor: but it rails to recognise the latter 



tive Slave Bill. As I read this statute I am 
filled with painful emotions. The masterly 
subtlety w 7 ith which it is drawn, might chal- 
lenge admiration, if exerted for a benevolent 



among the means of promoting that "harmony purpose; but in an age of sensibility and re 



and proper intercourse ; ; ' nor does it anywhere 
allude to the provision. 

The indifference which had thus far attend- 
ed this subject still continued. The earliest 
act of Congress, passed in 1793, drew little at- 
tention. It was not originally suggested by 



tinement. a machine of torture, however skilful 
and apt, cannot be regarded without horror. 
Sir, in the name of the Constitution which it 
violates; of my country which it dishonors; of 
Humanity which it degrades; of Christianity 
which it offends, I arraign this enactment, and 



any difficulty or anxiety touching fugitives from \ now hold it up to the judgment of the Senate 



17 

and the world. Again I shrink from no re- unrelenting | ■ 

sponsibility. I may seem to stand alone : bat women, wfco m I t> » the fu 

all the patriots and martyrs <>f history, all the conntenau e, succor, 

Fathers of the Republic, arc with me. Sir, their conseienc 

there is no attribute of God which duos not As it ia for the pubi : I 

unite against this Act. bean end of bi I 

But I am to regard it now chiefly as an in- l/ "' i naUods, these mu I 

frinffement «-f the Constitution. And here its fixtd "nutations I ume; bui I 

outoages.fiagrant as manifold, assume the deep- Slavery al 

est dy* and broadest character onlv when we universal justice, i rdain . 

consider that by its language it isnoi restrained Freedom without ., I 

to any special race or class, to the African or ume ; 

to the person with African blood : but that any < :!;,n, ' in - ""'V : " the ' I 

inhabitant of the United States, of whatever P»°g for argument, rindicatu n,or 

complexion or condition, n.av be us ricura. I come at once upon the two cl : 

Without discrimination of colot even, and jfcuons to this Act, 
in violation of every presumption of freed 

the Act surrenders all, who may be claimed as '»» Stomp Aci 

"owing service or labor" to the same tjtran- Congress ol powers i 

nical proceedings. If there beany, whose sym- tuuon,andan infraction i 

pathies are not moved for the slave, who Jonot States : and, teeondly, thai it 1 I r d 

oherish the rights of the humble African, strug byluryinaqi 

Ming for divine Freedom, as warmlv as the asuital common law I 

rights of the white man, let him consider well tions, if sustained, 
that the rights of all are equally assailed. 
"Nephew," said Algernon Sidney in prison, 
on the night before his execution, " I value not 
my own life a chip, but what concerns me is 
that lite law which takes away my life may 

hang every one of you, whenever it is thought ; , n> (|| - m ~ s upreme | 

convenient." early as 1793 Congress assui 

Though thus comprehensive in its provisions ,(,;/ M1 |, :,.,., \, % .,,, -.,.,. wn i c h ; 

cure Trial by Jury, and that the validity of 
tins Act under the < lonsuiution has 



Act, That it is obnoxious to both seems be- 
yond doubt. 

But here, at this si ige, I encounter I . 
culty, that these objection 
foreclosed by die l< gislation of < ■ ■ i by 



and applicable to all, there is no safeguard of 
Human Freedom which the monster Act does 
not set at naught. 

It commits this great question — than which 
none is more sacred in the law — not to a solemn 
trial; but to summary proceedings. 

It commits this question — not to one of the 
high tribunals of the land — but to the unaided 
judgment of a single petty magistrate. 

It commits this question to a magistrate, ap- 



linned by the Supreme Court. <>u examina- 
tion this difficulty will disappear. 

The Act of 1793] 
that had already r» i - 
Bank, chartered by a previous C 

though sanctioned by theSupre Court, has 

been Bince in high quart ra pron 
stitutional. If it em d as to the Bank, I 



pointed, not by the President with the consent ||;(V( , r| . |Vi | , i1mi m . , 

of the Senate, but by the Court; holding his me ver _ \,., , D mis 

office, not during good behaviour, but merely ver ysubject, 

during the will of the Court; and receiving, not m p., ,,.,,', , )Lr • 

a regular salary, but fees according to each in- ptivrex of the Nation in - 

dividual case. 

It authorizes judgment on ex parte evidence, te n |;111 , in nt - me , 
by affidavits, without the sanction of cross-ex- ^ e t i t c 

amination. [jtled ,,, . and will c 

It denies the writ of Habeas Corpus, ever menl j orie d by me except with n 

known as the Palladium of tie' citizen. (Qe memor ies ol my; ' happy da 

Contrary to the declared purposes of the fra- which I Bat at ! • 

mers of the Constitution, it sends the fugitive Marshall presided, with Sroat ■ 
back " at the public expense." pressure now ; 

Adding meanness to the violation of the Con- PHgg vs. Penruyluonta, (16 P< 

stitution,°it bribes the t JomraisskmeTby a double wherein tl 

fee to pronounce against Freedom. If he dooms ter is asserted. "W 

a man to Slavery, the reward is ten dollars; criticism of th it, or i sider a 

but, saving him 'to Freedom, his dole is live extent to which it is 

d ll ai - s . fore of no binding fore-, all which has been al- 

The Constitution expressly secures the " free re., |y done n i the bar in 

exercise of religion;" but this Act visits with ! able court in another j but conceding to it a 



18 



certain degree of weight as a rule to the judi- 
ciary on this particular point, still it does not 
touch the grave question arising from the de- 
nial of Trial by Jury. This judgment was pro- 
nounced by Mr. Justice Story. From the in- 
teresting biography of this great jurist, recently 
published by his son, we derive the distinct 
statement that the necessity of Trial by Jury 
was not before the Court; so that, in the esti- 
mation of the judge himself, it was still an 
open question. Here are the words : 

"One prevailing; opinion, which has created great 
prejudice against this judgment, is. that it denies the 
right of a person claimed as a fugitive from service 
or labor to a trial by jury. This mistake arises from 
supposing the case to involve the general question as 
to the constitutionality of the Act of 1793. But in 
fact no such question was in the case; and the argu- 
ment that the Act of 179.3 was unconstitutional, be- 
cause it did not provide for a trial by jury according 
to the requisitions of the sixth article in the amend- 
ments to the Constitution, having been suggested to 
my father on his return from Washington, he replied 
that this question was not argued by counsel nor con- 
sidered by the Court, and that he should still consider 
it an open one." 

But whatever may be the influence of this 
judgment as a rule to the judiciary, it cannot 
arrest our duty as legislators. And here I adopt 
with entire assent the language of President 
Jackson, in his memorable Veto, in 1832, of 
the Bank of the United States. To his course 
was opposed the authority of the Supreme 
Court, and this is his reply : 

" If the opinion of the Supreme Court covers the 
whole ground of this Act, it ought not to control the 
co-ordinate authorities of this Government. The 
Congress the Executive, and the Court, must each 
for itself be guided by its own opinion of the Consti- 
tution. Eac/i public officer, who tni.es an oath to sup- 
port the Constitntio/i, swears that lie null support it as 
lii : understands it. and not us it is understood by ot/i- 
er's. ii is as much the duty of the House of Repre- 
sentatives, of the Senate, and of tho President, to de- 
cide upon the constitutionality of any bill or resolu- 
tion, which may be presented to them for passage or 
approval, as it is of the Supreme Judges when it may 
be brought before them for judicial decision. The 
authority of tho Supremo Court must not, therefore, 
be permitted to control the Congress or the Execu- 
tive, when acting in their legislative capacities, but 
to have only such influence as the force of their rea- 
soning may deserve.'' 

With the*e authoritative words of Andrew 
Jackson 1 dismiss this topic. The early legis- 
lation of Congress and the decisions of the Su- 
preme Court cannot stand in our way. I ad- 
vance to the argument. 

(1 .) Now, first, of the power of Congress over 
thii subject. 

The Constitution contains powers granted to 
Congress, compacts between the States, and 
prohibitions addressed to the Nation and to the 
States. A compact or prohibition may be ac- 
companied by a power ; but not necessarily, for 
it is essentially distinct in its nature. And 
here the single question arises, whether the 
Constitution, by grant, general or special, con- 



fers upon Congress any power to legislate on 
the subject of fugitives from labor. 

The whole legislative power of Congress is 
derived from two sources; first from the gen- 
eral grant of power, attached to the long cata- 
logue of powers, " to make all laws which 
shall be necessary and proper for the carrying 
into execution the foregoing powers and all 
other powers vested by this Constitution in the 
Government of the United States, or in any 
department or officer thereof;" and secondly, 
from special grants in other parts of the Consti- 
tution. As the provision in question does not 
appear in the catalogue of powers and does not 
purport to vest any power in the Government 
of the United States, or in any department or 
officer thereof, no power to legislate on this sub- 
ject can be derived from the general grant. Nor 
can any such power be derived from any 
special grant in any other part of the Constitu- 
tion ; for none such exists. The conclusion 
must be, that no power is delegated to Congress 
over the surrender of fugitives from labor. 

In all contemporary discussions and com- 
ments, the Constitution was constantly justified 
and recommended, on the ground that the pow- 
ers not given to the Government were with- 
held from it. If under its original provisions 
any doubt could have existed on this head, it 
was removed, so far as language could remove 
it, by the Tenth Amendment, which, as we 
have already seen, expressly declares that, 
" the powers not delegated to the United States 
by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively 
or to the people." Here on the simple text 
of the Constitution I might leave this ques- 
tion. But its importance justifies a more ex- 
tended examination in a two-fold light ; first, 
in the history of the Convention, revealing the 
unmistakeable intention of its members ; and 
secondly, in the true principles of our Political 
System, by which the powers of the Nation 
and of the States are respectively guarded. 

Look first at the history of the Convention. 
The articles of the old Confederation, adopted 
by the Continental Congress 15th Nov., 1777, 
though containing no reference to fugitives from 
labor, had provisions substantially like those in 
our present Constitution, touching the privi- 
leges of citizens in the several States, the sur- 
render of fugitives from justice and the credit 
due to the public records of States. But, since 
the Confederation had no powers not " ex- 
pressly delegated," and as no power was del- 
egated to legislate on these matters, they were 
nothing more than articles of treaty or compact. 
Afterwards at the National Convention, these 
three provisions found a place in the first re- 
ported draft of a Constitution, and they were 
arranged in the very order which they occu- 
pied in the Articles of Confederation. The 
clause, relating to public records stood lust. Mark 
this fact. 



19 



When this clause, being in form mi rely ;i 
compact, came up lor consideration in the < Jon 
veniion, various efforts were made to grafi 
upon it a power. Tins was on the very dai "I 
the adoption of the clause relating I 
from labor. Charles Pinckney moved to com 
mit it with a proposition for a power to estafa 
lish uniform laws on the subj< el oi bankruptcy 
ami foreign bills of exchange. Mr. Madison 
was iii favor of a [town- tor the execution of 
judgments in other States. Gouverneur Mor 
ris also on the same day moved to commit a 
further proposition fur a pmrrr "to determine 
the proof and effect of such acts, records, and 
proceedings." Amidst all these efforts to as 
sociate a power with this compact, it is clear 
that nobody supposed that any Midi already 
existed. This narrative places the \ i< \ 
the Convention beyond question. 

The compart regarding public records, to- 
gether with these various propositions, was re 
i'erred to a committee, on which were Mr. 
Randolph and Mr. Wilson, with John lint- 
ledge, of South Carolina, as chairman. After 
several days, they reported the compact with 
a power in Congress to prescribe by general 
laws the manner in which such records shall 
be proved. A discussion ensued, in which 
Mr. Randolph complained that the " definition 
of the powers of the Government was so ' 
as to give it opportunities of usurping all the 
State powers. He was for not going further 
than the report, which enables tlie Legislature In 
provide for the effect of judgments." The 
clause of compact with the pow< r attached 
was then adopted, and is now a part of the 
Constitution. In presence of this solicitude 
for the preservation of " State powers," even 
while considering a proposition for an express 
power, and also of the distinct statement of 
Mr. Randolph, that he " was not for ifoinir fur 
ther than the report," it is evident thai the idi a 



■ 

titled !'. nil ] r i \ U 

th< ••'•• r.il g| 

•• A person charg I 
01 :••■'•' i 

tod in ■■<< ■ i 
Executive authority of I 
Ivi red op, • 
Lion '■! the . 

- ' 
trader tin laws th< 'ball, 

in 001 , iinv law 01 

diiefa ■ 
delivorcd a 

or labor maj ' o duo. 
" 6 1 
i Union ; I 

t". in 'i or • 
other State . ri"r any f 

out tl 
oerncd 

make all noedfal rnli - end regulat 

territory or otl ; 

Stat< i . and d itl i : 

States, or ol | I 

" Sbo rioN t. The ' 
to c\ ery State in thif i i ion ■ 
Government, and 

invasion, and on a] pli tation of the I 
the Executive, [whi i I 
vrin d] against domi jtio i iol< 

Here is the whole article. It wi 
served that the third section immediately fol- 
lowing the triad section ol com| 
two specific powi rs, one with 
States, and tic othi r with regard to tl P 
Treasury. These are naturally p 
gether, while the fourth - 
article, which is distinct in I 
placed by itself. In I 

information, rea why 

this arrangement was mad.. Bui the conclu- 
sion is obvious, that, in lh< 



could not then have occurred that a power was mittee and of the Convention,) 

Mins differs from the oth< rs. T 
tains a compact with a gi 

i! contains provisions, all of which are 
simple compacts, and tv 
confessedly simple c ip tcts in the old ' I 
ofO ofederation, from which, un 
ter or spiiit, th< I I I 

is a !-' . with- 

oul any i ' 

ti' r compai • up rely, 

emn injunction upon ihi } I I 

ment to perform luty. 

The Trainers of the < " 'vise 

and careful mi o, who had a n as< a H r " 

they did and « 

which they employed. They '• r 

discussion, incorp 'rate into thl ir work any mi- 

perfluous provision; nor did they wil 

sign adopt the peculiar arrangement in which 

it appears. In a Iding I i the record compaet 

the express grant of powi r. tfa ' not 

only their desire for such power in Congress ; 



coupled with the naked clause of compact on 
fugitives from labor. 

At a later day, the various clauses and arti- 
cles severally adopted from time 10 time in 
Convention were referred to a committee of re- 
vision and arrangement, that they might be re 
duced to form as a connected whole*. Here 
another change was made. The clause relating 
to public records, with the power attached, 
was taken from its original place at the bottom 
of the clauses of compact, and promoted to i 
stand first in the article, as a distinct section, 
while the other clauses of compact, concei I 
citizens, fugitives from justice and fugil 
from labor, eacli and all without any power 
attached, by a natural association compose but ' 
a single section, thus : 

" ARTICLE IV. 
" Section 1 . Full faith and credit shall bo given in 
each {states to the public acts, records', tod judicial 
proceedings of every other State. And I 
maybygt tierdl laws prescribe the manner in winch such \ 



. ■ Uii MM -"i.- 



- 

. - ; - _„ 



: 



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- 

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sadu33 cc' js 'cissaea. Sakji m a 2bcl. 

, pccaaor a» Ac dkaks aawi n . 

tapafSaaaBa^aa. 
■ iihiiii aioaaase, at owae aa ok , 
Ac fcaenaftmr C i M i w ai », a» jMa a W aaCca 

■y pcwrer to Vgiitwr . ate aar as aaa- . 

_Ji i ■■#!■■ at lie rale peoid aa K 

JfattHC BCSaBBla? 1Xc£ A3EMM 

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af Ac Cawnma, m. m aaiJaatiir akaa aaew? g u , ■ TTl al it>— |i n—i ran al «ae 

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Bat taas Act at aac oofr aat vj-aa t u a ci aae taV Azfias v -s aa 

aasaaaaaa •:•; aaar*? :- u,- Xaaoa: a e l^s. . - . --*- Hi*: g -r t 7 -a :» 

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pes aarf ngaas. Ta ac Sa te aae ri aaaai aAea m^fl p- - -.^ - . 

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:.-- -_ - -- T • .j \:-r i : - ::— •: ^. . ., : -..__ 7 V: 

^ - ' 

S .!■-» -i-;— ? > r>:T-:-:jr >;-... "-* r "— L '-""-J - 

i._ -.::•-». -T- AzI aaas,laiaar sir. -^-T/ 7 . 

is ibe oatr sKatrar kv >j*t-^- ; ^ ^^ 

"^ r-rSTz: -.i i - --r _ ~: ~ . . " : - :-_ -> T ■"■- , ^ -_-_„" "- __-.- ^1 — :: , : .- i^ 

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Kacacr. 





|r aaar a -a ow« Ma? MaaaW -^ iiiMTajTai ii» aa a**- 

:i -"- ^ . - " - 

Aarfa^I^^anaKaof aWaw^aaa. **^*t?laa *U - 

afal 

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. aaw aa aai&acaca ck 
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00 



Elbridge Gerry refused to sign the Constitution, 
because among other things, it established "a 
tribunal witlvout juries, a Star Chamber as to 
civil cases." Many united in his opposition, 
and on the recommendation of the First Con- 
gress this additional safeguard was adopted as 
an amendment 

Now, regarding the question as one of 
property, or of Personal Liberty, in either 
alternative the Trial by Jury is secured. For 
this position authority is ample. In the de- 
bate on the Fugitive' Slave Bill of 1817— '18, 
a Senator from South Carolina, Mr. Smith, 
anxious for the asserted right of property, ob- 
d, on this very floor, to a reference of the 
question, under the writ of Habeas Corpus, to 
a judge without a jury. Speaking solely for 
property, these were his words : 

" This would give the Judge the sole power of de- 
ciding thi right of property tki master claims in //is 
g that right by a jury, as pre- 

i In Constitution. He would be judge of 
matters of law and matters of fact; clothed with all 
the powers of a court. Such a principle is unknown 
in your system of jurisprudence. Your Constitution 

it. Ii preserves the right of Trial by Jury 
in all cases where the value in controversy exceeds 
twenty dollars." — (Debates in National hiti lligt net f, 
June 15, 1818.) 

But this provision has been repeatedly dis- 
cussed by the Supreme Court, so that its mean- 
ing is not open to doubt. Three conditions are 
necessary. First, the proceedings must be "a 
suit ; " secondly, "' at common law ; " and third- 
ly, " where the value in controversy exceeds 
twenty dollars." In every such case " the 
right of Trial by Jury shitU be preserved." The 
decisions of the Supreme Court expressly touch 
each of these points. 

First. In the case of Cohens vs. Virginia, 
(6 Wheaton, .407.) the Court say : " What is 
a suit? We understand it to be the prosecu- 
tion of some claim, demand, or request." Of 
course, then, the "ciaim " for a fugitive must 
be " a suit." 

Secondly. In the case of Parsons vs. Bedford, 
(3 Peters, 456,) while considering this very 
clause, the Court say : " By common lain is 
meant not merely suits which the common law 
recognised among its old and settled proceed- 
ings, but suits in which legal rights were to be 
ascertained and determined. In a just sense, 
the Amendment may well be construed to em- 
brace all suits, which are not of Equity or Ad- 
miralty jurisdiction, whatever may be the pent. 
liar form which they may assume to settle legal 
rights." Now, since the claim lor a fugitive 
is not a suit in Equity or Admiralty, but a suit 
to settle what are called legal rights, it must, of 
course, be " a suit at imon law." 

Thirdly. In the case of Lee vs. Lee, (8 Pe- 
ters, 11.) on a question whether " the value iu 
controversy" was "one thousand dollars and 
upwards," it was objected that the appellants, 
who were petitioners for Freedom, were not of 
the value of one thousand dollars. But the 



Court said: "The matter in' dispute is the 
Freedom of the petitioners. This is not suscep- 
tible of pecuniary valuation. No doubt is enter- 
tained of the jurisdiction of the Court." Of 
course, then, since liberty is above price, the 
claim to any fugitive always and necessarily 
presumes that " the value in controversy ex- 
ceeds twenty dollars." 

By these successive steps, sustained by de- 
cisions of the highest tribunal, ; t appears, as in 
a diagram, that the right of Trial by Jury is se- 
cured to the fugitive from labor. 

This conclusion needs no further authority ; 
but it may receive curious illustration from the 
ancient records of the common law, so familiar 
and dear to the framers of the Constitution. It 
is said by Mr. Burke, in his magnificent speech 
on Conciliation with America, that " nearly as 
many of Blackstone's Commentaries were sold 
in America as in England," carrying thither 
the knowledge of those vital principles of Free- 
dom, which were the boast of the British Con- 
stitution. Imbued bv these, the earliest Conti- 
nental Congress, in 1774, declared, " that the 
respective Colonies are entitled to the common 
law of England, and especially to the great and 
inestimable privilege of being tried by their 
peers of the vicinage according to the course of 
that law." Thus, amidst the troubles which 
heralded the Revolution, the common law was 
claimed by our fathers as a birthright. 

Now although the common law may not be 
approached as a source of jurisdiction under the 
National Constitution — and on this point I do 
not dwell — it is clear that it may be employed in 
determining the meaning of technical terms in 
the Constitution borrowed from tliis law. This, 
indeed, is expressly sanctioned by Mr. Madi- 
son, in his celebrated report of 1799, while re- 
straining the extent to which the common law 
may be employed. Thus by this law we learn 
the nature of Trial by Jury, which, though 
secured, is not described by the Constitution ; 
also of Bills of Attainder, the Writ of Habeas 
Corpus, and Impeachment, all technical terms 
of the Constitution borrowed from the com- 
mon law. By tli is law, and its associate 
< hincery, we learn what are cases in law and 
equity to which the judicial power of the United 
States is extended. These instances I adduce 
merely by way of example. Of course also in 
the same way we learn what in reality are suits 
at common law. 

Now, on principle and authority, a claim for 
the delivery of a fugitive slave is a suit at com- 
mon law, and is embraced naturally and neces- 
sarily in this class of judicial proceedings. 
This proposition can be placed beyond question. 

History painfully records that during the 
early days of the common law, and down even 
to a late period, a system of slavery existed in 
England, known under the name of villainage. 
The slave was generally called a villain, though, 
in the original Latin forms of judicial proceed- 



ings, nalivus, implying slavery by birth. The 
incidents of this condition have been minute 
]y described, and also the mutual remedies 
of master and slave, all of which were regu- 
lated by the common law. Siaves sometimes 
then, as now, escaped from their masters. 
The claim for them after such escape was pros- 
ecuted by a " suit at common law," to which, 
as to every suit at common law, the Trial by 
Jury Avas necessarily attached. Blackstone, in 
his Commentaries, (Vol. II, p. 9o,) in words 
which must have been known to all the law- 
yers of the Convention, said ofviUcnns: "They 
could not leave their lord without his permis- 
sion, but if they ran away, or were purloined 
from him, miglU he claimed and recovered by 
action, like beasts or other cattle." This very 
word " action 7 ' of itself implies " a suit at com- 
mon law " with Trial by Jury. 

From other sources we learn precisely what 
the action was. That great expounder of the 
ancient law. Mr. Hargrave, says, " the Year 
Books and Books of Entries are full of the 
forms used in pleading a title to villains." 
Though no longer of practical value in Eng- 
land, they remain as monuments of jurispru- 
dence, and as mementoes of a barbarous insti- 
tution. He thus describes the remedy of the 
master at common law : 

" The lord's remedy for a fugitive villain was, either 
by seizure or by sucing out a writ of Tfativo Ha&i n- 
do, or Neifty, as it is Bometimea called. It' the lord 
seized, the villain's most effectual mode of recovering 
lihorty was by the writ of Hotnifie Repleet 
which had great advantage over the writ of Habeas 
Corpus. In the // > ( 'o put tho return cannot be 
contested by pleading against tho truth of it, and 
consequently on a Habeas Corpus tin question of lib- 
erty cannot %<> to a jury for trial. But in the Uomint 
Replegiando it was otherwise. The plaintiff on the 
defendant's pleading villainage, had the same oppor- 
tunity of contesting it. as when impleaded by the lord 
in a IV, aim Hal ttdo. If the lord sued onl a V 
Habendo, and the villainage was denied, in whioh oase 
the sheriff could not seize tho villain, the lord was 
th'/i to enter his plaint in the county court, and as '■ 
the sheriff was not allowed to try tho question of vil- | 
lainage in his court, tho lord could not have any ben- 
efit from the writ, without removing the cause by tho 
writ of Pone into the King's Bench or Common 
rieas. - '— (20 Howell's State Trials, 38 note.) 

The authority of Mr. Hargrave is sufficient. 
But I desire to place this matter beyond all 
cavil. From the Digest of Lord Chief Baron 
Comyns, which, at the adoption of the Consti- 
tution, was one of the classics of our jurispru- 
dence, 1 derive another description of the 
remedy of the master : 

" If the lord claims an inheritance in his villain, 
who flies fro ■■ • ' ■' • gainst his will, and lives in 
a place out of th< whioh He is regardant, 

the lord shall bare a Narivo Ha kendo. And upon 
such writ, directed to the sheriff, he may seize him 
who does not deny himself to be a villain. But if the 
defendant say that ho is a Free Man. the sheriff cannot 
seize him, hut the lord must remove the writ by /'" << 
before tho Justices in Eire, or in 0. B., where he ' 
must ruioit upon it." — (Comyns' Digest — Villainage, 
C.l.) | 



An early writer of peculiar authority, Fitz- 
herbert, in his JS'alara Bretman, on thfl writs 
of the common law, thus describes these pro- 
ceedings : 

'■Tin- writ it Tfativo II hendo lietfa tor the lord 
who claimetb inheritance in any villain, when kit 
villain it run from him. and is remaining within any 
place out of the nuvnor unto whioh he is regardant, 
or when he departoth from his lord against the lord's 
will; and the writ shall be directed to the sheriff. 

And the Sheriff may B01Z0 the villain, and deliver him 

unto his lord, if the villain oonfesa unto the sheriff 
that he it his villain ; but if the villain say to tho 
sheriff that he is frank, then it Boemeth that tho 
sheriff ought not to seize him: M it is in a replevin, 
if tho defendant claim property, the sheriff cannot 
replevy tho cattle, bat the party ought to sue a writ 
',,./.■, Probanda; and so if the villain .-ay 
that lie is a freeman. 4o., then the sheriff ought not 
to seize him. I nit then the lord ought to 8U0 a i • 
to romove the plea before the justices of the Common 
Pli as or boforo the jnstioes in eyre. But if the vil- 
lain purchase a writ </• Libertati Probanda before tho 
lord hath sued the Pone to remove the plea before 
the justice-, then that writ of Lr'>, nda is 

a Supersedeas unto the lord, that be proceednot upon 
the writ Tfativo Habendo till the eyre of the justices, 
ami that the lord ought not to seize the villain in tho 
moan time.'" — (Vol. I, p. 76.) 

These authorities are not merely applicable 
to the <jeneral question of freedom; but ihey 
distinctly contemplate the case of fugitive 
slaves, and the "suits at common law "for their 
rendition. Blackstone speaks of villains who 
*• ran away ;" Hargrave of" fugitive villains;" 
Comyns of a villain " who flies from his 1< Til 
against his will j" and Fitzherl pro- 

ceedings of the lord •• when bis villain is run 
from him." The forms, wi 
and judgments, in these suits, are all 
among the • i oon law. The 

writs are known as original writs which 
partv on either side, al ln< | '"I I 

sue out of right without showing cam I 
writ of Libertate Probanda for a fugitive si 
was in this form : 
■■/.■' 

"The king to the sheriff a •. A. and B 
have showed unto us, thai when aa tb ■ 
women, and read; to prove tie-ir lil 
them to be his nieft unjustly, • 

fore « imraand j >u that if the al I B. 

shall make you leoure touohing the prorii 
liberty, then pul that ploa bofore obi juati • - al tho 
first assizes, when they shall come into I 
because proi I of this kind b longi th i t 
talc: and in the mean time cauac the sal 1 \ n 

to have poaoe tl oupon, and tell the aforesaid P. 

that he may be thore, if ho will, to prosecute bii plea 
th reof against the aforesaid A. ai I have 

there this writ Witness, 4c. '— P 
p. 77.) 

By these various proceedings, all ending in 
Trial by Jury, Personal Libert) wa guarded, 
even in the early, unrefined, and b days 

of the common law. Any person claime 1 as a 
fugitive slave might invoke this Trial .1- a sa- 
cred right. Whether the master proi • 1 ded by 
seizure, as he might, or by legal process, the 
Trial by Jury iu a suit at common law, before 



24 

one of the high courts of the realm, was equal- , more on the two chief grounds of objection 
iy secured. In tlie case of seizure, the fugitive, ! which I have occupied. But I am admonished 
reversing the proceedings, might institute pro- : to hasten on. 

cess against his master and appeal to a court ; Opposing this Act as doubly unconstitutional 
and jury. In the case of process by the master, ' from a want of power in Congress and from a 



the watchful law secured to the fugitive the 
same protection. By no urgency of force, by 
no device of process, could any person claimed 
as a slave be defrauded of this Trial. Such was 
the common law. If its early boast, that there 
could be no slaves in England, fails to be true, 
this at least may be its pride, that, according to 



denial of Trial by Jury, I find myself again en- 
couraged by the example of our Revolutionary 
Fathers, in a case which is one of the land- 
marks of history. The parallel is important 
and complete. In 17G5, the British Parlia- 
ment, by a notorious statute, attempted to draw 
money from the colonies through a stamp tax, 



its indisputable principles, the Liberty of every ! while the determination of certain questions of 
man was placed under the guard of Trial by ! forfeiture under the statute was delegated— not 



Jury. 

These things may seem new to us ; but they 
must have been known to the members of the 
Convention, particularly to those from South 
Carolina, through whose influence the provi- 
sion on this subject was adopted. Charles 
Cotesworth Pinckney and Mr. Rutledge had 
studied law at the Temple, one of the English 



to the courts of common law — but to courts of 
Admiralty without a jury. The Stamp Act, 
now execrated by all lovers of liberty, had this 
extent and no more. Its passage was the sig- 
nal for a general flame of opposition and indig- 
nation throughout the Colonies, ft was de- 
nounced as contrary to the British Constitution 
on two principal grounds ; first, as a usurpa- 



Inns of Court. It would be a discredit to them, ! tion by Parliament of powers not belonging to 
and also to other learned lawyers, members of" it, and an infraction of rights secured to the 
the Convention, to suppose that they were not j Colonies ; and second!)/, as a denial of Trial by 
conversant with the principles and precedents , Jury in certain cases of property, 
directly applicable to this subject, all of which j The public feeling was variously expressed, 
are set down in works of acknowledged weight, ! At. Boston, on the arrival of the stamps, the 
and at that time of constant professional study. ! shops were closed, the bells of the churches 
Only a short time before, in the case of Somer- | tolled, and the flags of the ships hung at half- 
sett, they had been most elaborately examined ', mast. At Portsmouth, in New Hampshire, 
in Westminster Hall. In a forensic effort of ' the bells were tolled, and notice given to the 

friends of Liberty to hold themselves in readi- 
ness to attend her funeral. At New York a 
letter was received from Franklin, then in Lon- 
don, written on the day after the passage of the 
Act', in which he said : " The sun of liberty is 
set." The obnoxious Act, headed " Folly of 
England and Ruin of America," was con- 
temptuously hawked through the streets. The 
merchants of New York, inspired then by Lib- 
erty, resolved to import no more goods from 
England until the repeal of the Act ; and their 
example was followed shortly afterwards by 
the merchants of Philadelphia and Boston. 
Bodies of patriots were organized everywhere 
under the name of " Sons of Liberty." The 
orators also spoke, .lames Otis with fiery 
tongue appealed to Magna Cliarta. 

Of all the Slates, Virginia — whose shield 
bears the image of Liberty trampling upon 
chains — first declared herself by solemn reso- 
lutions, which the timid thought '-'treason- 
able ;" but which soon found a response. New 
York followed. Massachusetts came next, 
speaking by the pen of the inflexible Samuel 
Adams. In an Address from the Legislature 
to the Governor, the true grounds of opposition 
to the Stamp Act, coincident with the two 
radical objections to the Slave Act, are clearly 
set forth : 

" You are pleased to gay that the Stamp Act is an 
act of Parliament, and as such ought to be observed. 
This House, sir, lias too great reverence for the Su- 
preme Legislature of the nation, to question its just 



unsurpassed learning and elevation, which of 
itself vindicates for its author his great juridical 
name, Mr. Hargrave had fully made them j 
known to such as were little acquainted with 
the more ancient sources. But even if we j 
could suppose them unknown to the lawyers of 
the Convention, they are none the less appli- 
cable in determining the true meaning of the 
Constitution. 

The conclusion from this examination is ex- 
plicit. Clearly and indisputably, in England, 
the country of the common law, a claim lor a 
fugitive slave was " a suit at common law," 
recognised " among its old and settled proceed- 
ings." To question this, in the face of authen- 
tic principles and precedents, would be prepos- 
terous. As well might it be questioned, that a 
writ of replevin for a horse, or a writ of right 
for land, was " a suit at common law." It 
follows, then, that this technical term of the 
Constitution, read in the illumination of the 
common law, naturally and necessarily em- 
braces proceedings for the recovery of fugitive 
slaves, if any such be instituted or allowed 
under the Constitution. And thus, by the letter 
of the Constitution, in harmony with the re- 
quirements of the common law, all such per- 
sons, when claimed by their masters, are en- 
tiilrd to a Trial by Jury. 

Such, sir, is the argument, briefly uttered, 
arrninst the constitutionality of the Slave Act. 
Much more I might say on this matter; much 



2.' 

ithority. It Tiy no means appertains to us to pro- i no men, thoueh surrouiiifd by off 
uae to adjust the boundarine o£ the power of Parha* | wealth, can l< Dg sustain injasl 
,ent; *«f &W7«kr*M fA«-« undt»ibud/y_ar«. We nature, llu ; m > . - lue: but 



«v» v »»!»...», . — : . 1 1 1 1 I . \ > i V. . till 1 1 11 III li 

all those whoslmtld mah rtatutet ion omuvi £hkm, Eolation ,,, CO nstimiional 

beim; hade, contrary to tin- liberties "/•',, , , , ' 

Charta. The Charter of this province i a By It UUOTJS ol Legislatun 

General AsspimDv with the power of making laws fot meetings, by 8] 

ibi internal government and taxation j and this Char, assembliefl and processions, the G 

few has never been forfeited. The Parliament has a r:t 1 1 i. , ] ,„ peaceful phalai 

right to make all laws withta toe limits of their owa .. . ., ' , . ... , , , 

eonstitution." * * * "Thepeopl. .plain that t*n\ of the Jet. Ho thw 

the Act vests a ainriejudge of Admiralty with a power 'I' 1 ' bounds ol law and the constiti 

... . _ . . .i - . .?.. .i ..::. ........:.."... ....:... I .....' I . I .....,..;. , .;. ...| 

trary to the very expression of Magna Charta. that |s . (hjs (mi( . ;in . fu l| ,,, , ,, ; , , 

no freeman sliall bo iimcrccd, but by the oaili ..I i; 1 . . ' 

nndlawfulmeu of the vicinage." * * ' ff We Ib formal insttucUona U> hei repi 



the Act vest* a single j u < ( jrc oi auiiiii any wu:i a power '■" uuuma w ■ ■"• "•■ • ••' 

to try and determ te their property in oontroveraioi bent all the patriot en 

ariaing from internal oonoerns, without a Jury, oon- 1 ; \,,,l bere Boston took the bad. II' 

trary to the very expression of Mn K nn charia. thai (h)s (mi( . ;m . |u |, ,,, , m p 

no trecman sliall bo amerced, butby the nailM.I i: 1 . . ' 

andlawfulmen of the vicinage." * * * " We I» formal instxuctoons 10 hei repret 

deeply regret that the Parliament hai aeon fit to pan adopted unanimously," havina 

sueh an rt as the Stamp Act ; we flatter ourselves eral i -," in Town Meeting it Fai 

that the hardships of it will shortly appear to thorn in ,. [ ( , miD a ru :.. ,,;' con I 

in such a light, as shall indace them in their wisdom .,.,,„,, • 

to repeal itfinth mean time, we mnst beg your Ez- . 'We, therefore think .t • »bl« duty to 

cellJcytov thing tS assist in • '"• . chca and 1 

th< execution of it." "fV"^"^ 

■* hut .1 icon! and respectful 

Thus in those days spoke Massachusetts! great. tTJ lion with thU Law 

The parallel still proceeds. The unconstitu- " i»,;,m',. „i ,.,,o 
tior^Wp Act was welcomed intheColonie a ' 
by the Tones ofthatday precisely as the uncon- , : ,. :1 ,,,,. < ;„ ,,„. Qenoral \ 
Stitutional Slave Act has been welcomed by rent inalienable Bights of thi People. 
large and imperious numbers among us. asserted, and vindicated, ai 
Hutchinson, at that time Lieutenant Governor <"'■ «bat Posterity may ., ■■■ 
and Judge in Massachusetts, wrote to Minis- I 
ters in England : "The Stamp Act is received 
with as much decency as could be expected. 
It leaves no room for evasion, and will execute 
itself." Like the judges of our day, in charges 

to grand Junes he resolutely vindicated the |i ,„ |; ,, 1 , i;il]V M i , l ,,,„., 
Act. and admonished •• the jurors and the peo- Ag h > ned> 

pie" to obey. Like Governors o our day , Ber- dj ^ WM , ;imi , 

nard, in his speech to the Legislature ol .Mas- 
sachusetts, demanded unreasoning submission. 
"I shall not," says this British Governor, 
"enter into any disquisition of the polio} oi 
this Act. I have only to say it is an act of the 
Parliament of Great Britain; and I trust that 
the supremacy of that Parliament over all the 



tog them away. 

\ irginia responded lo Bosti a. M 
qb o| .,,, | ice surrei ered th« ircoroi 
sions " rather than aid in the enforcemeni 
the law or 1 •■ instrumental in the ov< rthi h 

i(> :. 
(1. Bey was to outbn ik an I 

w.iv carefully restrained. 1 1 i 
Boston ii showed r-- U in the lawli - 

But the town, at a public i ■ 
Paneuil Hall, called withi )* 

tion of the opponents of the Stamp A- t, -.\ ith 
James Otis as chamnan, I ihe out- 

ii-u.iianie.uove! ..u ,,,- -^ y] , 

members ot their wide and diffused empire £* ^ []ti 
never was and never will be denied within . inii ,',,„;,. lllt |, discountenanci lallti 
these walls." Lihe marshals of our day, the ,,.,„... ;vll ,| ^j Her equal de- 

officers of the Customs made " application Rh . c(a drew ,]„. p , 

a military force to assist them in the execution , «rns. In i 

of their duty." The mUiiary were against the Marca 27th 1766 to a ' 
people. A British major oi artillery at New inhabitanta ,',,- Plymouth, her own 
York exclaimed, m tones not unlike those now q{ d ,. Q (j ; ^ , !iUs , 

sometimes heard: "I wjl cram the Stamps .. If „ K . ;„,;,,,,, 
down their throats with the end ot my sword.' 
The elaborate answer of Massachusetts— a pa 
per of historic jrrandeur— drawn by Sainm I 
W, s .was p.o.nuu.d •• u,« raving ,r , ;;;-;■ . 

parcel ot wild enthusiasts. 

Thus in those days spoke the partisans of , 
the Stamp Act. But their weakness soon be- given any 
camemamfes, In the face of an awakened fc« 
community, where discussion has tree scope, . y of their fellow-co 



26 



Lf>arn now from the Diary of John Adams 
the results of this system : 

" The year 1 765 has been the most remarkable year 
of my life. That enormous engine, fabricated by the 
British Parliament, for battering down nil the rights 
and liberties of America — I mean the Stamp Act — 
has raised and spread through the whole continent a 
Bpirit that will be recorded to our honor with all fu- 
ture generations. In every Colony, from Georgia to 
New Hampshire inclusively, the stamp distributors 
and inspectors have been compelled by the uncon- 
querable rage of the people to renounce their offices. 
.Such and so universal has been the resentment of the 
people, that every man who has dared to speak in 
favor of the stamps, or to soften the detestation in 
which they are held, how great soever his abilities 
and virtues had been esteemed before, or whatever 
his fortune, connections, and influence had been, has 
been seen to sink into universal contempt and ig- 
nominy."' 

The Stamp Act became a dead letter At , S ' r ' l mi S ht here stop. It is enough in this 
the meeting of Parliament numerous petitions P ;f?? ,. ou , ls ? ccasion > l ° show the uncon- 
were presented, calling lor its instant reneal ! sulutl0nallt y ot th is enactment. Your duty 
Franklin, at that time^in En-land while "iv- i c ° m i Ben , ces at °, n , ce - A " legislation hostile to 
ing his famous testimony before the House of' the , tu 1 ndamental aw of the land should be re- 
Commons, was asked whether he thought the ; P without delay Bdt the argument is 

- not yet exhausted. Even if this Act could 



emanation of British tyranny. Both, indeed, 
infringe important rights ; one of property • 
the other the vital right of all, which is 'to 
other rights as the soul to the body— the right 
of a man to himself. Both are condemned ; but 
iheir relative condemnation must be measured 
by their relative charactprs. As Freedom is 
more than property ; as Man is above the dol- 
lar that he earns; as Heaven, to which we 
all aspire, is higher than the earth, where every 
accumulation of wealth must ever remain : so 
are the rights assailed bv an American Con- 
gress higher than those "once assailed by the 
British Parliament. And just in this decree 
must history condemn the Slave Act more than 
the Stamp Act. 

Sir, I might here stop. 



people of America would submit to this" Act if 

modified. His brief emphatic response was : 

No, never, unless compelled by force of 



claim any validity or apology under the Consti- 
tution, which it cannot, it lacks that essential 
support in the Public Conscience of the States, 



arms." Chatham, yet weak Avith disease but i 

mighty in eloquence, exclaimed in ever-mem- \ Zn? 'J a * f^''T A "*?* M the V* °f 
orable words : " We are told America is obsti- 1 law ;f nd ™™out which any law must become 
nate— America is almost in open rebellion. 1° 4vZ « ^ c c a o ,. ™„ „ 
Sir, Ircjoice that America has relisted. Three , JJlSjSSj T Sou "\ Carolina M ' • Bur- 
millions of people so dead to all the feeling i ' R - ] wa * ri S ht ' ^ at the begmn.ng of the 
of liberty, as Voluntarily to submit to be I tTv' he Pointedly said that a law which 
slaves, would have been fit instruments to '< ?° «° "S^H? by the bayonet, was no 
make slaves of all the rest The Ameri- ' n^ ^ 1S ldle to suppose that an Act of 
cans have been wronged; they have" been Congress becomes effective merely by com pli- 
driven to madness. I will be? | P VP , ilu ^ a " Ce ? ,th the form s of Ieg.sla.tion. Something 



the House in a few words what is reallv ST* " J^T" 7 ' \?« Act ?}. u8t he in bar- 
my opinion. It is that the StZnp It here- ' Z" 7 W ' th 5? P™™ 1 ' ? F*«* Bcntiment of 
pealei absolutely, totally, and SdMv" t LTrT* J T^T * *T? ^ ^^ 
was repealed. Within ess than a Tear from i Sge ? fch e cordial support of 

its original passage, denounced and diCcHtecT ^ w rV f ever ? smal l0Cality is neces - 
itwasdriven from the S ute Z e t^i, H * d ^ eaQ that the public feelings, 

charnel-house of historv, whh the' u Jh 1 tlfl b co »v,ct,ons , the public conscience, 
thines of the Past if nmv II T? • 1 ^ must not be touchea ~ wounded, lacerated, by 



pence, with the chances of amercements by a 
single judge without a jury ; but, by no pro- 
vision of this Act was the personal liberty of 
any man assailed. Under it no freeman could 
be seized as a slave. Such an act, though 
justly obnoxious to every lover of constitu- 
tional Liberty, cannot be viewed with the 
reelings of repugnance, enkindled by a statute 



this is especially the case in an enactment 
which concerns the important and sensitive 
rights of Personal Liberty. In conformity with 
this principle the Legislature of Massachusetts, 
by formal resolution, in 1850, with singular 
unanimity, declared : 

"We hold it to be the duty of Congress to pass 
such laws only in regard thereto as will be main- 



wbich assails the Dersonal lihprtv n rLZ~T \ f* : *? s 2r y in rogard thoroto as lvi " bc mai "- 
and under which ,ne t W Y f Vety - m , an ' t& T? by the . se , nti '" c "ts of the Free States, where 

diui unuer wnicn any freeman mav be seized as » uch law ^ are to be enforced." 
a slave. Sir. in placing the Siam'n Act hvtlie tu« j i c u . , 

side of th* Slave Act I L SSLt, \ J The duty of consulting these sentiments was 

me fclave Act, I do mjust.ee to that | recognised by Washington. While President 



of the United States, at the close of his Admin- 
istration, he sought to recover b slave, who bad 
fled to New Hampshire. His autograph letter 
to Mr. Whipple, the Collector of Portsmouth, 
dated at Philadelphia, 28 fill November, 1796, 

Which I now hold in my hand, and which hai 

never before Been the light, after describing the 
fugitive, and particularly expressing the • ■ 
of "her mistress," .Mr-. Washington, for her 

return, employs the following decisive lan- 
guage : 

"I do not tvk.iti, however, bythia re 
such violent measures Bhould be deed is n 01 i • 

CITE A MOB OR RIOT, WHICH M1QST BE I'm: CASS IF ' 
SHE HAS ADHERENTS, Ott BVJ IBNSATIONS 

IN THE HINDSO WELL-DISPOSED CITIZENS. Rather 

than either iif these Bhould happen, I would : 
her services altogether; and the example also, which 
is of infinites more importance. 

"GEORGE W ^SfflNGTON." 

Mr. Whipple, in his reply, dated at Ports- 
month, December 22, I7!)f>. an autograph copy 

of which I have, recognises the rule of Wash- 
ington : 

"Twill now. sir. agreeably to yeur desire, Bond hex 
to Alexandria, if 

gueneea which yon except — that of < vetting •• riot or 
, or creating utmasy * ns ttumt in tlu mituis <-/ 

/'• ll-disposed persoi -. The Brat cannol I aloulated 

beforehand; it will be governed by the popul ur 0] in 
ion of the moment, or the cironmstancca that may 
arise in the transaction. The latter may bo so 
into ami judged of by conversing with such persona 
without discovering the occasion. Bo far aa I have 
had opportunity. I perceive that different sentiments 
are entertained on this subject." 

The fugitive never was returned; but lived 
in freedom to a good old age, down to a very 
recent period, a monument of the just f rbear- 
ance of him whom we aptly call the Father of 
his Country. It is true that be sought her re- 
turn. This wc must regret, and find it- apolo- 
gy. He was at the time a slaveholder. Though 
often fvTth various degrees of force express- 
ing himself against slavery, and promising his 
suffrage for its abolition, he did doI see this 
wrong as he saw it at the close of life, in tin 1 
illumination of another sphere. From this 
of Washington, still swayed by the polii 
the world, I appeal to Washington writing his 
will. From Washington on earth I appeal to 
Washington in Heaven. Seek not by his name 
to justify any such effort. His deatb is above 
his life. His last testament cancels his author- 
ity as a slaveholder. However he may have 
appeared before man, he came into the pres- 
ence of God only as the liberator of bis slaves. 
Grateful for this example. I am grateful 
that while a slaveholder, and S6( king the re- 
turn of a fugitive, he has left in permti nent rec- 
ord a rule of conduct which, if adopted by his 
country, will make Slave-Hunting impossible. 
The chances of a riot or mob, or -even uneasy 
sensations among well-disposed persons,''" arc 
to prevent any Buch pursuit. 

Sir. the existing Slave Act cannot be enforc- 
ed without violating the precept of Washing- 



trio. Not merely - bnenj 

I 
moo, r'...\ 
overflowing t)un1 

ho • (onto derl 

In patrlam populnm . 
Not a ease ocean withi 
public peace Woi kmi n are 1 rutall; 
from employments to whi 

ful labor 
ravished from wives, and j u i 
dren. Everywhere there is distui I 
Detroit Buna! li rrisburgb, Syracuse, Phil- 
adelphia, New iork I 

• 

w 1 against a r<-«i-ln >r store, and his i 

trial commen I while the blood -till i 1 

from bh wounded b< ad At Syi 

was t 1 1 n mol 

ton, At Harrisburgh the I 

at Christiana the Slave-Hunt r 

New \ ork unpre ■ tement, al •• 

with uncertain consequences, hai .• ry 

.in at I! iston I • 

to the received re] ort, was l 

under hot hi- was a or m d 

ed only after :i de kdlj »trug| i I by 

officers who acted in violation if the Ian 

the State; tried in a Court II • !- 

ed by chain- contrary to the 

finally surrendered to Slavery bytramplu 

the criminal process of tin- State, un I 

escort in violation a§ 

Stun', while the pulpits trembled and 'he v 

I eople, not merely " uneasi | s ith 

ill-suppressed indignation, II rth< 
and tranquillity, without violence witnessed 
the shamefal oatastrophe. 

With every attempt to administer t 
Act, it c< ostantly ' eci met more revoltii g par- 

ticul irly in its [nfluem n tl 

lists. Pitch cannot be touched without d 
ment, and all who lend themselves t 1 v...rk. 
seem at once an I our, a 
better part of man Tl i I the law 

• into them, aa the dei 

Upstart c immissioners, the mere ra ishi 
of courts, vie and revie with each otl 

by indecent s] d, now by bai 

ner. now by D .1":: : .-:' of evidi DC 

pling t!i>- del snee, and now l ■■, 

wrong, they mak i the 

oua Clemency, grace, and jusl 

i esem e All this is obsen id 

Not a case 

bouIs of good men, and bring b 

thy to the eyes, also - 

•• patriots -' ng laws • ^ 

Sir. I shall speak frankly. If there ' e an ex- 
ception to ri is feeling it will be found chiefly 
with a peouliar olass. It is as 
mercantile interest," in its 

• ilfishness, twice in E wn« 
ed upon the i n the atro- 
city of Algerine Sbavery ; that it 






s 



baffle Wilberforee*s great effort for the aboli- 
tion of the African slave trade; and that, by 
n sordid compromise, at the formation of our 
Constitution, it exempted the same detest- 
ed Heaven-defying traffic from American 
judgment. And now representatives of this 
"interest,"' forgetful that commerce is the child 
of Freedom, join in hunting the Slave. But 
the great heart of the people recoils from this 
enactment. It palpitates for the fugitive, and 
rejoices in his escape. Sir, I am telling you 
facts. The literature of the age is all on his 
side. The aongs, more potent than laws, are 
fir him. The poets, with voices of melody, are 
for Freedom. Who could sing for Slavery 1 
They who make the permanent opinion of the 
country, who mould our youth, whose words, 
dropped into the soul, are the germs of char- 
acter, supplicate for the Slave. And now, sir, 
behold a new and heavenly ally. A woman, 
inspired by Christian genius, enters the lists, 
like another Joan of Arc. and with marvellous 
power sweeps the chords of the popular heart. 
Now melting to tears, and now inspiring to 
rage, her work everywhere touches the con- 
science, and makes the Slave-Hunter more hate- 
ful. In a brief period, nearly 100.000 copies 
of Uncle Tom's Cabin have been already circu- 
lated. But this extraordinary and sudden suc- 
cess — surpassing all other instances in the rec- 
ords of literature — cannot be regarded merely 
as the triumph of genius. Higher far than this, 
it is the testimony of the people, by an unpre- 
cedented act, against the Fugitive Slave Bill. 

These things I dwell upon as the incentives 
and tokens of an existing public sentiment, 
which renders this Act practically inoperative, 
except as a tremendous engine of terror. Sir, 
the sentiment is just. Even in the lands of 
slavery, the slave-trader is loathed as an igno- 
ble character, from whom the countenance is 
turned away ; and can the Slave-Hunter be 
more regarded while pursuing his prey in a 
land of Freedom 1 In early Europe, in barba- 
rous days, while Slavery prevailed, a Hunting 
Master, nack jagender Herr, as the Germans 
called him, was held in aversion. Nor was this 
all. The fugitive was welcomed in the cities, 
and protected against the pursuit. Sometimes 
vengeance awaited the Hunter. Down to this 
day, at Revel, now a Russian city, a sword is 
proudly preserved with which a Hunting Baron 
was heheaded, who, in violation of the munici- 
pal rights of this place, seized a fugitive slave. 
Hostile to this Act as our public sentiment may 
be, it exhibits no trophy like this. The State 
laws of Massachusetts have been violated in 
the sei/.ure^ft^a fugitive slave; but no sword, 
like that of Revel, now hangs at Boston. 

I have said, sir, that this sentiment is just. 
And is it not .' Every escape from Slavery 
necessarily and instinctively awakens the re- 
gard of all who love Freedom. The endeavor. 
though unsuccessful, reveals courage, man- 
hood, character. No story is read with more 



interest than that of our own Lafayette, when, 
aided by a gallant South Carolinian, in defi- 
ance of the despotic ordinances of Austria, 
kindred to our Slave Act, he strove to escape 
from the bondage of Olmutz. Literature 
pauses with exultation over the struggles of 
Cervantes, the great Spaniard, while a slave in 
Algiers, to regain the liberty for which he says, 
in his immortal work, "we ought to risk life 
itself. Slavery being the greatest evil that can 
fall to the lot of man."' Science, in all her 
manifold triumphs, throbs with pride and de- 
light, that Arago, the astronomer and philoso- 
pher — devoted republican also — was redeemed 
from barbarous Slavery to become one of her 
greatest sons. Religion rejoices serenely, with 
joy unspeakable, in the final escape of Vincent 
de Paul. Exposed in the public square of Tu- 
nis to the inspection of the traffickers in human 
flesh, this illustrious Frenchman was subjected 
to every vileness of treatment, like a horse, 
compelled to open his mouth, to show his teeth, 
to trot, to run, to exhibit his strength in lifting 
burthens, and then, like a horse, legally sold in 
market overt. Passing from master to master, 
after a protracted servitude, he achieved his 
freedom, and regaining France, commenced 
that resplendent career of charity by which he 
is placed among the great names of Christen- 
dom. Princes and orators have lavished pane- 
gyrics upon this fugitive slave ; and the Catho- 
lic Church, in homage to his extraordinary 
virtues, has introduced him into the company 
of saints. 

Less by genius or eminent services, than by 
sufferings, are the fugitive slaves of our country 
now commended. For them every sentiment of 
humanity is aroused ; 

" Who could refrain 

That had a heart to love, and in that heart 
Courage to make his love known ?" 

Rude and ignorant they may be ; but in theii 
very efforts for Freedom, they claim kindred 
with all that is noble in the Past. They are 
among the heroes of our age. Romance has 
no stories of more thrilling interest than theirs 
Classical antiquity has preserved no examples 
of adventurous trial more worthy of renown 
Among them are men whose names will be 
treasured in the annals of their race. By the 
eloquent voice they have already done much 
to make their wrongs known, and to secure 
the respect of the world. History will soot 
lend them her avenging pen. Proscribed by 
you during life, they will proscribe you througl 
all time. Sir, already judgment is beginning. A 
righteous public seutimeut palsies your enact 
ment. 

And now, sir, let us review the field over which 
we have passed. We have seen that any conr 
promise, finally closing the discussion of Sla 
very under the Constitution, is tyrannical, ab 
surd, and impotent. ; that as Slavery can exisi 
only by virtue of positive law. and as it has nc 



-T7T- 



Buch positive support in the Constitution, it 
cannot exist within the National jurisdiction : 



that the Constitution nowhere recognises pro] 
erty in man. and that, according r ', its true in- 
terpretation. Freedom ami not Slavery i- na- 
tional, while Slavery and not Freedom is Beotion- 
al ; that, in this spirit, the National Govern i 
was first organized under Washington, himself 
an Abolitionist, surrounded by Abolitionists, 
while the whole country, by its Church, its 
Colleges, its Literature, and all its 



i! i 

diaehai 
delivered op on ol 

From tl: ■• 
ous that tl 
States, with a prol 

lo 

i ■ 

was united against Slavery, and^h'e maioual ' ™"&* ' !'" ! 

flag at that time nowhere within the National T"""- " !! 

iSitory covered a single slave; still further, "«"«■«»; 

ii i. ii tm i n l- i- rii.-tomari v eompn I under t 

chat the National Government is a Government , ,. ■ ' . 

„ f i . . j _ , i .i press" obligations" t treat 

ot delegated powers, and as am >ng theM' > , _ ... •,, 

^ = * > c , . . . ... .. to surrender fugitr 

is no power to support Slavery, thiB institution , , , 

l . , ,. ' ', v« ■ n the case with fugi In 

cannot he national, nor van Congress m an\ ■• , ,. , . 

medieval buro] e, > r. - 

this obligation in favor ol . nde* 

tho same National I :it. In 1 

while the N ' 

under I V, th ■ :■ 



way legislate in its behalf; and. finally, that 
the establishment of this principle is the true 
way of peace and safety fur the Republic. 
Considering next the provision for the surren- 
der of fugitives from labor, we have aeon tbat 



Me :hlin reject) d an a 



it was not one ol the original compromises ol .. 

., n ... .. ..„. if • ' , , . for the surrender ol 

the Constitution: that it was introduced tar- . ,*V 

vi a »i i •* »• i a * i -,i !■'' s- C" mpac 

day and with hesitation, and adopted with ', 

1-n.i a- ■ i .i i t i . . ''"' provision • > ;h 

little discussion, and then and for along pe- r ' , .... 

• j C . j , •„, .• • trom the Ordinance ol •' 



riod after was regarded with comparative in 
difference: that the recent Slave Act. though 
many times unconstitutional, is especially so 
on two grounds— -first, as a usurpation by Con- 
gress of powers not granted by the Constitu- 
tion, and tin infraction of rights secured to the 



ritory. which is expn 

pact : and this < Irdinan e Irawn by 

Nathan Dane, W i rowed in 

tive features from the earl 

sachuBetts, ami ng which 

was a compact ol like nal 

Thus this pi 
■ 
'"1" "" V ';."", ", "•' .7 ""[»"?■ i \-, ' tow : as wc fa 

tutionalv finds a prototype m the i>r;t-di Stamp . 

: ording to tho in : 



c, / j jl 1 -1 /• 'p • I 1 M.l> il ' Olll i;m I o 

States; and secondly, as ;i denial ol J rial by ,. , , c j. 

t ■ i- I- i) i r -i * . i * hngland States 

Jury, in a question of Personal Liberty and a J» . , 

■ J) , l , ., . •. . • t - pact in laneuag 

suit at common law: that its glaring unconstl- ' , 



Act, which our fathers refused to obey as mi 

""' constitutional on two parallel grounds — -first, 



■ - 

because it was a usurpation by "Parliament of - v 
poweiBjiot belonging to it under the British 1v up ., ti 



ConsTffution and an iufraetion of righfa 

longing to the Colonies ■ and secondly, because 

it was" a denial of Trial by Jury in certain 

cases of property : that as Liberty is far above !' :l " '" ,! ' 

property, so is the outrage perpetrated by the "trued «»ctly in every n \--t- ■ 

American Congress far above that perpetrated " ' 

by the British Parliament: and. finally, thai meaning, i 

the Slave Act has not that support in the ilW:l . v important personal i 

public sentiment of the States where it is to l '"' P"ti m it is a] 

he executed, which is the life of all law. and -- rd d as "persons. 



r _•' ts of " | 'T" :.'..!'!• " : 

I n Iful ol • 
of tl I iw, thai 

• ;n. V 



which prudence and the precept of Washing- 
ton require. 

Sir, thus far I have arrayed the objections 

to this Act, and the false interpretations out of th,a K v ,h " l! !,: ; ' M « 

which it has sprung. Hut I am asked v hat I 8 toy. 

offer as a substitute for the legislation which I Briefly, the Stati b irre 

denounce. Freely I will answer. It is to be "law or regulation 

found in a correct appreciation of the provis- maybe d 

ion Of the Constitution, under which this dis- of the claim to 

cussion occurs. I k at it in the doul le light of op. But the mod- by wl 

reason and of Freedom, and we oanno tried and letei 

the exact extent of its requirements. Here is ; - bvioualy wii 

the provision : Ic ma J 1 "-' ^" : 



i>V 



in which event any Legislature, justly careful 
of Personal Liberty, would surround the fugi- 
tive with every shield of the law and Constitu- 
tion. But such legislation may not be neces- 
sary. The whole proceeding, without any ex- 
press legislation, may be left to the ancient and 
authentic forms of the common law, familiar 
to the framers of the Constitution and ample 
for the occasion. If the fugitive be seized with- 
out process, he will be entitled at once to his 
writ de Moraine Replegiando, while the master, 
resorting to process, may find his remedy in 
the writ de Nativo Habendo — each writ requir- 
ing Trial by Jury. If from ignorance or lack 
of employment these processes have slumbered 
in our country, still they belong to the great 
arsenal of the common law. and continue, like 
other ancient writs, tanquam gladiurti in va- 
gina, ready to be employed at the first necessity. 
They belong to the safeguards of the citizen. 
But in any event and in either alternative the 
proceedings would be by "suit at common 
law." with Trial by Jury; and it would be the 
solemn duty ot the court, according to all the 
forms and proper delays of the common law, 
to try the case on the evidence ; strictly to ap- 
plv all the protecting rules of evidence, and es- 
pecially to require stringent proof, by compe- 
tent witnesses under cross-examination, that the 
person claimed was held to service; that his 
service was due to the claimant; that he had 
escaped from the State where such service was 
due : and also proof of the laws of the State 
under which he was held. Still further, to the 
Courts of each State must belong the determi- 
nation of the question, to what classes of per- 
sons, according to just rules of interpretation, 
the phrase ■■person-*, held to service or labor" is 
strict hi applicable. 

Such is this much-debated provision. The 
Slave States, at the formation of the Constitu- 
tion, did not propose, as in the cases of Natu- 
ralization and Bankruptcy, to empower the 
National Government to establish an uniform 
rule for the rendition of fugitives from labor, 
throughout the United States : they did not ask 
the National Government to charge itself in 
any way with this service : they did not ven- 
ture to offend the country, and particularly the 
N »rthern States, by any such assertion of a 
hateful right. They were content, under the 
sanctions of compact, to leave it to the public 
sentiment of the States. There, I insist it shall 
remain. 

Mr. President, I have occupied much time; 
but the great subject still stretches before us. 
One other point yet remains, which I should 
not leave untouched; and which justly belongs 
to the close. The Slave Act violates the Con- 
stitution and shocks the Public Conscience. 
With modesty and yet with firmness let me 
add. sir. it offends ;ic;:nn^t the Divine Law. No 
such enactment can be entitled to support. As 
the throne of God is above every earthly throne, 



so are his laws and statutes above all the laws 
and statutes of man. To questh n these is to 
question God himself. But to assume that hu- 
man laws are beyond question is to claim for 
their fallible authors infallibility. To assume 
that they are always in conformity with those 
of God is presumptuously and impiously to ex- 
alt man to an equality with God. Clearly hu- 
man laws are not always in such conformity ; 
nor can they ever be beyond question from each 
individual. Where the conflict is open, as if 
Congress should command the perpetration of 
murder, the office of conscience as final arbi- 
ter is undisputed. But in every conflict the 
same Queenly office is hers. By no earthly 
power can she be dethroned. Each person, 
after anxious examination, without haste, with- 
out passion, solemnly for himself must decide 
this great controversy. Any other rule attrib- 
utes infallibility to human laws, places them 
beyond any question, and degrades all men to 
an unthinking passive obedience. 

According to St. Augustine, an unjust law 
does not appear to be a law ; lex esse non vide- 
tur (juce just a non fucrit ; and the great fathers 
of the Church, while adopting these words, de- 
clare openly that unjust laws are not binding. 
Sometimes they are called " abuses," and not 
laws ; sometimes " violences." and not laws. 
And here again the conscience of each person 
is the final arbiter. But this lofty principle is 
not confined to the Church. A master of phi- 
losophy in early Europe, a name of intellectu- 
al renown, the eloquent Abelard, in Latin 
verses addressed to his son, has clearly express- 
ed the universal injunction : 

Jussa potestatis terrenre discutienda 

Coelcstis tibi mox perficienda seias. ^r^ 

Siquis divinis jubeat contraria jussis / 

Tc contra Dominuui pactio nulla trahat. / 

The mandates of an earthly power wff be 
discussed; those of Heaven must at once be 
performed; nor can any agreement constrain 
us against God. Such is the rule of morals. 
Such, also, by the lips of judges and sages, has 
been the proud declaration of the English law, ' 
whence our own is derived. In this conviction 
patriots have fearlessly braved unjust com- 
mands, and martyrs have died. 

And now, sir, the rule is commended to us. 
The good citizen, as he thinks of the shivering 
fugitive, guilty of no crime, pursued, hunted 
down like a beast, while praying for Chris- 
tian help and deliverance, and as he reads the 
requirements of this act, is filled with horror. 
Here is a despotic mandate, " to aid and as- 
sist in the prompt and efficient execution of 
this law." Again let me speak frankly. Not 
rashly would I set myself against any provi- 
sion of law. This grave responsibility I would 
j not lightly assume. But here the path of duty 
is clear. By the Supreme Law, which com- 
mands me to do no injustice; by the compre- 
hensive Christian Law of Brotherhood; by the 
Constitution, ivhich I have sworn to support. 



31 



I AM BOUND TO DISOBEY THIS ACT. NeV'T. ill 

any capacity, can I render voluntary aid in its 
execution. Pains and penalties I will endure : 
but this great wrong I will not do. u I cannot 
obey; but I can suffer,'' was the exclamation 
of the author of Pilgrim's Progress, when im- 
prisoned for disobedience to an earthly statute. 
Better suffer injustice than do it. Better be the 
victim than the instrument of wrong. Better 
be even the poor slave, returned to bond 
than the unhappy Commissioner. 

There is, sir, an incident of historv, which 
suggests a parallel, and affords a Lesson of 
fidelity. Under the triumphant exertions of 
that Apostolic Jesuit, St. Francis Xavier, large 
numbers of the Japanese, amounting to as 
many as two hundred thousand — among their 
princes, generals, and the flower of the nubil- 
ity — were converted to Christianity. After- 
wards, amidst the frenzy of civil war, religions 
persecution arose, and the penalty of death 
was denounced against all who refused to 
trample upon the effigy of the Redeemer. This 
was the Pagan law of a Pagan land. But the 
delighted historian records that scarcely one 
from the multitudes of converts was guilty of 
this apostacy. The law of man was set at 



naught Imprisonment; torture, death, were 
preferred Thns did 
pie on the painted imag Sir, i 
among us will not be !• ■ 

to trample on the li\ing image of their 

deemer. 

Finally. *ir. for the Bake of 1 1 tran- 

quillity, oease to shook the Put I 
for the sake of the Constituti • 
oise ■ power whiefa is nowhei 
which violates inviolable righl 
cured. Leave this question where it 
by our fathers, at the formation of our V- • i 
Government; in \h<- absolute control ot 
Stated, the appointed gnardiant 1 1 P 
Liberty. Repeal this enactment Let il I -- 
rors no longer rage thr ugh the land Mindful 
of the lowly whom it pursues; min 1ml 
good men perplexed by its rt ; irement»;ii 
name of charity, in t'h" oame of tbt I 
tion. repeal this enactment I tallj and without 
delay. Be inspired I j the example of Wash- 
ington, Be adn | <>ri- 
ental piety — "Beware of tie- groans of the 
wounded souls, I Oppress n< t to the 
single heart; for a solitarv • r to 
overset a whole world." 



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